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

1. 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.

2. 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. 

3. Secondly, even though robberies of this kind are not as prevalent as the often poorly planned offences committed by more desperate offenders, general deterrence assumes much importance when an offender uses the confidential information with which he was entrusted to engage in criminal conduct.

4. Thirdly, the amount of money stolen and the large proportion unaccounted for strongly differentiates the appellant’s offence from robberies of the kind considered in R v Place.

5. On the other hand, as I foreshadowed, the circumstance that the appellant neither caused harm, nor threatened, Ms Hosking with a weapon is important.  So too is his willingness to ameliorate the conditions of Ms Hosking’s detention.  But for those circumstances, I would not have interfered with the sentence. 

6. BLUE J:   I agree with Stanley J.

   STANLEY J:

   Introduction

7. This is an appeal against sentence. 

8. On 13 March 2012, after trial by jury, the appellant was convicted of one count of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (the Act) and one count of false imprisonment.

9. On 11 May 2012 the 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, which was backdated to 30 March 2012. 

10. In imposing sentence the sentencing judge gave the appellant two months’ credit for 12 days he had spent in custody and six months on home detention. 

11. The appellant appeals on the ground that the sentence is manifestly excessive both in respect of the head sentence and the non-parole period.

    The circumstances of the offending

12. On 10 December 2009 the appellant robbed the Mannum branch of BankSA of $120,775. 

13. The robbery was planned.  The appellant entered the branch premises around 9:15 am, before the bank opened for trading.  At that time there was only one person on the premises, Ms Hosking, a customer services officer.  At that time another employee arrived at the staff entrance door.  She knocked on the door and Ms Hosking opened the door to admit her after ascertaining her identify through the security peep hole.  As the employee entered the premises, the appellant pushed his way through the door into the bank behind the other bank employee.  Importantly, for the purposes of this appeal, the appellant was unarmed.

14. I note that the other employee also has been charged with the robbery, and is awaiting trial.  The judge did not make any finding on the nature of her involvement.  

15. Once in the premises, the appellant, who was wearing dark wrap-around sunglasses, seized Ms Hosking by her arms and pushed her against a wall, saying, “This is not your lucky day … do what I tell you.”  He took Ms Hosking to the male toilet, forcing her to lie on the toilet floor.  He bound her hands behind her back with cable ties, and placed blue electrical tape over her mouth.  He had brought the ties and electrical tape with him into the bank for use in the crime.  The appellant left the toilet, returning from time to time to check on Ms Hosking.  She was left in the toilet for approximately 25 minutes.  After some time, she was able to free herself from the cable ties and remove the electrical tape from her mouth.  When the appellant returned after this had occurred, she asked the appellant not to replace the electrical tape as she suffered from asthma.  He agreed to this request.  When she complained that her knees hurt because of the hard floor in the toilet, the appellant found a jacket and placed it under her knees. 

16. At one point he returned to the toilet and demanded that Ms Hosking write down her personal security code which was needed to open the branch safe.  She did so.

17. While she was in the toilet, Ms Hosking heard sounds which she thought were sobs of distress from the other employee whom she had not seen since she had been placed in the toilet.  Ms Hosking was understandably frightened.

18. During this time the appellant unlocked the safe and the bank’s ATM.  The proceeds of the robbery were placed in two green shopping bags that the appellant had brought with him. 

19. Once this occurred the appellant took both Ms Hosking and the other employee by the arms into the bank’s staff room and directed them to lie on the floor.  He left the room and returned later, using cable ties to secure the arms of both women so that they were lying back-to-back with their wrists tied together.

20. The appellant then left the bank premises. 

21. After he left, Ms Hosking and the other employee managed to get to their feet and walk to the counter of the bank where they activated the alarm.  Police arrived shortly thereafter.  In all, Ms Hosking had been detained for approximately 30 minutes.   This was the basis of the false imprisonment charge. 

22. The robbery was an aggravated offence pursuant to s 5AA(1)(k)(i) of the Act because Ms Hosking was, to the knowledge of the appellant, in a position of particular vulnerability at the time of the offence because of the nature of her occupation as a bank employee. 

23. Following the robbery the appellant caught a taxi from Murray Bridge to Adelaide.  In Adelaide he paid $41,000 to a man to whom he was indebted.  On the same day he paid cash for a plane ticket to Sydney. 

24. On 12 December 2009 he was arrested at the Strathmore Hotel on North Terrace after he returned to Adelaide from Sydney.  On the same day, the sum of $20,500 was found in the room the appellant occupied in Sydney.

25. Approximately $60,000 remains outstanding.  There has been no restitution made. 

    The circumstances of the offender

26. At the time he was sentenced, the appellant was 35 years of age.  He came from a good family.  The learned sentencing judge observed that his family were supportive.  After completing Year 12 he attended university.  Eventually he obtained a bachelor’s degree in economics and commerce from Flinders University.  Subsequently he obtained a diploma in financial planning. 

27. The appellant had a career in banking and finance.  He has variously been employed by Westpac, BankSA and Macquarie Bank.  He has lived in Japan where he taught English. 

28. Importantly, he was employed at the Murray Bridge branch of BankSA until he resigned, following an incident at a Christmas party where he assaulted someone, which resulted in a conviction for assault causing harm.  After his resignation from BankSA he obtained employment in Sydney with Macquarie Bank.  In mid-2009 he was made redundant due to the Global Financial Crisis. 

29. Apart from various driving offences, the appellant has a history of offending as a youth or young adult in Darwin where he was convicted of possessing housebreaking implements and stealing.  I have referred to the more recent assault offence for which he received a three-month suspended sentence.

    Sentencing remarks

30. The learned sentencing judge, after reciting the circumstances of the offending, noted the appellant’s absence of remorse and that a significant sum of the proceeds of the crime remain unaccounted. 

31. The learned sentencing judge considered that the offending was made worse by reason of the appellant being a former employee of the bank.

32. His Honour noted that the offending did not involve the use of a weapon, but did involve tying up a bank employee and the use of force.  He referred to the appellant’s prior convictions, that his time in custody had been difficult, and that his counsel had submitted that the appellant had a lot of capacity and could achieve quite a lot in the future.

33. He imposed a sentence on the basis that it would commence on the day he was taken into custody.  He mistook this for 30 March 2012 rather than 13 March 2012.

    The approach of an appellate court

34. The circumstances in which an appellate court may interfere with a sentence are well known. 

35. In Markarian v The Queen[2] Gleeson CJ, Gummow, Hayne and Callinan JJ described those circumstances as follows:

    As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.

    [2] (2005) 228 CLR 357.

36. This approach was further explained in Dinsdale v The Queen[3] by Kirby J, who said:[4]

    As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly.  In appellate review of sentencing, it will commonly be the case that the appellate court’s authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.

    [3] (2000) 202 CLR 321.

    [4] (2000) 202 CLR 321 at 340 [59].

    Submissions on appeal

37. The appellant accepted that his offending was serious but submitted, nonetheless, that there were features of the offending suggesting it was less serious than many aggravated robberies committed against banks and bank employees.  He pointed to the following factors:

    ·No offensive weapon was used in the commission of the offence;

    ·The appellant was not in company, and the victim was not presented with the combined force or strength of two or more offenders;

    ·The appellant did not adopt any disguise other than dark sunglasses;

    ·The appellant remained calm throughout the robbery.  He was not abusive, overtly threatening, nor did he make a demonstrative display of violence in order to subdue or intimidate the victim;

    ·The appellant did not reapply electrical tape over the victim’s mouth once she had removed it, at her request.  He provided a jacket under the knees of the victim when she was in the toilet, to relieve the pain she experienced.

    ·The actual level of threat to the victim’s safety was minimal;

    ·There was no risk of the offending posing a threat to the physical safety of members of the public;

    ·The actual level of force used by the appellant was low.

38. The appellant also put the discrete submission that the sentence was manifestly excessive in that the standard for the offence of aggravated robbery for a first offender is a sentence in the range of six to eight years.  The sentencing judge did not expressly make an assessment of where this matter sat in the scale of seriousness for offences of this kind.  Had he done so, he should have used a starting point for the imposition of a head sentence within or below that standard range.  The starting point of 10 years was too high in all of the circumstances. 

39. The appellant submitted that the non-parole period was also manifestly excessive.  At the end of the day, however, I understood the appellant to submit that this followed from the fact that the head sentence itself was unreasonably high. 

40. Apart from the circumstances of the offending, the appellant also submitted that the learned sentencing judge erred in failing to have regard to the reasonable prospects of the appellant for rehabilitation.  He also submitted that the learned sentencing judge erred in not making a finding as to the role played in the offending by the other bank employee.  He submitted this was relevant because the presence of the insider, while a serious matter in itself, also had the effect of reducing the level of physical threat to Ms Hosking.

41. Finally, the appellant submitted that the learned sentencing judge erred in backdating the commencement of the sentence to 30 March 2012 instead of 13 March 2012.

42. Counsel for the Director conceded the last submission.  Otherwise, the Director submitted the sentence was within the appropriate range for an offence of this type.  The Director emphasised that the appellant was sentenced for two offences, namely, aggravated robbery and false imprisonment.  The maximum penalty for the former offence is life imprisonment.  The maximum penalty for the latter is at large.  He submitted that the robbery was a well-planned and large-scale holdup, involving a substantial amount of money, utilising the appellant’s inside knowledge of the procedures of the bank, and involved some violence towards Ms Hosking.  Of the proceeds of the crime, only about $20,500 had been recovered.  In relation to the offence of false imprisonment, this had been committed against someone who was bound and gagged and isolated from her fellow employee, in some pain and discomfort, for up to 30 minutes. 

43. The Director submitted that the appellant demonstrated no remorse, he had prior convictions, and his crimes had caused Ms Hosking significant physical and mental harm.

44. 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

45. 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].

46. 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].

47. 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.

48. 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. 

49. 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. 

1. These are all factors which invoke considerations of specific and general deterrence. 

2. In addition, the learned sentencing judge, in fixing the head sentence, was imposing a single penalty for two offences pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). In considering the reasonableness of the head sentence, due weight must be given to the fact the appellant was being sentenced not only for the offence of aggravated robbery, but also for the offence of false imprisonment.

3. Nonetheless, I consider that the circumstances of this offending did not take it outside of the range identified by Place.  This was serious offending.  It called for a substantial penalty.  In my view, the appropriate penalty was at the very upper end of the Place range.  While the Court of Criminal Appeal in Place emphasised that a well-planned and large-scale armed holdup 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 applied, the Court was referring to an armed holdup.  While well planned and involving a substantial sum of money, this was not an armed holdup.  This offending did not involve the use of a weapon or a replica weapon.  This is the salient feature of the appellant’s conduct which, in my view, means this is not a case that can be characterised as falling within the Place qualification warranting a more severe sentence than the Place range.  As the Court observed in Place, the manner in which an armed holdup is carried out is an important factor in determining whether the particular circumstances of an offence take it outside the type of offences to which the range of six to eight years applies.  Had the offending involved the use of a weapon or a replica weapon, then the penalty imposed would not have been unreasonable. 

4. In my view, the appropriate head sentence is eight years.  A sentence of eight years imprisonment properly reflects the necessary considerations relating to specific and general deterrence which offending of this type requires.  The head sentence of 10 years imposed by the learned sentencing judge is a term of imprisonment 25 percent greater than that appropriate to the circumstances of the appellant’s offending.  I am satisfied that this renders the sentence manifestly excessive.  This conclusion is sufficient to allow the appeal.  In deference to the other submissions put by the appellant, I should indicate that this is the only basis upon which I would allow the appeal.  Apart from the sentence itself, the approach taken by the learned sentencing judge discloses no error of principle.   

5. I do not consider that there was any error of principle on the part of the learned trial judge in relation to the way in which he dealt with the position of the other bank employee, or the question of the appellant’s rehabilitation.

6. There is no error on the part of the learned sentencing judge in failing to make any finding with respect to the role played in the appellant’s offending by the other bank employee.  If her role was entirely innocent, that cannot diminish the culpability of the appellant or mitigate the seriousness of the offending so as to call for a reduction in the head sentence.  Indeed the appellant on that premise unlawfully imprisoned not one but two bank employees.  If she was complicit in the appellant’s offending, that would only aggravate the seriousness of his offending.  On either view the appellant must, at least, have carefully planned the robbery after informing himself of her work routine and making an assessment of the degree to which she might actively oppose his objective.  Finally her complicity or otherwise in the appellant’s offending could not reduce the level of physical threat to Ms Hosking. 

7. The submission that the learned sentencing judge made no reference to the appellant’s prospects of rehabilitation I consider to be misconceived.  The learned sentencing judge made reference to the appellant’s personal circumstances including, in particular, that he came from a good and supportive family, his level of education and previous work experience.  He noted the submission made on behalf of the appellant’s counsel that the appellant had a lot of capacity and could achieve quite a lot in the future.  I consider that he weighed those factors in fixing sentence. 

8. For these reasons, I do not consider that the learned sentencing judge made any error of principle in the approach he took to fixing the head sentence.  For reasons explained above, I consider the head sentence to be manifestly excessive.  The learned sentencing judge adjusted the head sentence from the starting point of 10 years by giving the appellant two months’ credit for the 12 days he had spent in custody and the six months he spent on home detention.  I would not interfere with this approach.  I would set aside the adjusted head sentence of nine years and 10 months, and in lieu thereof, I would impose a head sentence of seven years and 10 months. 

9. It follows that the fixing of the non-parole period involves error.  The non-parole period was fixed based on 60 percent of the starting point for the head sentence of 10 years.  As I have said, I understood the appellant’s submission to accept that a ratio of 60 percent of the head sentence is reasonable.  I consider that the non-parole period, fixed at 60 percent of a head sentence of ten years, is manifestly excessive.  I would set aside the non-parole period of five years and 10 months, and fix a non-parole period of four years and eight months.  This reflects the two months credit given by the learned sentencing judge for the time the appellant spent in custody and on home detention.   

10. 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

11. 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.