R v Melbourne - [2017] SASCFC 11

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MELBOURNE
[2017] SASCFC 11
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Doyle)
17 February 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - AGGRAVATION
Appellant convicted of one count of aggravated robbery contrary to s 137 of the Criminal Law Consolidation Act 1935 (SA) and one count of attempted aggravated robbery contrary to ss 137 and 270A of the Criminal Law Consolidation Act 1935 (SA) – sentenced to seven years imprisonment with a non-parole period of five years – whether sentence manifestly excessive.
Held per Kelly J (Vanstone and Doyle JJ agreeing): Appeal dismissed – final sentence imposed, despite being at the upper end of the available range, was appropriate given the serious nature of the offending and within the available range.
Criminal Law Consolidation Act 1935 (SA) s 137, s 270A, referred to.
R v Place (2002) 81 SASR 395; R v Wilson; R v Eleche [2014] SASCFC 73, considered.

R v MELBOURNE
[2017] SASCFC 11
Court of Criminal Appeal: Vanstone, Kelly and Doyle JJ

VANSTONE J: I would dismiss the appeal. I agree with the reasons written by Kelly J.
KELLY J:
The appellant, Simon Melbourne, was found guilty by a jury in the District Court of one count of aggravated robbery contrary to s 137 of the Criminal Law Consolidation Act 1935 (SA) and one count of attempted aggravated robbery contrary to ss 137 and 270A of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for the offence of aggravated robbery is life imprisonment. The maximum penalty for attempted aggravated robbery is a term not exceeding 12 years imprisonment.
The appellant and another man, Wade Biddle, targeted a visibly mentally ill man after boarding the same bus for the purpose of stealing any valuable items he might have. When the man alighted from the bus, the appellant and the co-offender threatened him and demanded he hand over his wallet, phone and ring. The appellant then punched and kicked the victim. When he broke free both the appellant and the co-offender pursued him across the Salisbury Highway and continued to violently assault him. The victim’s wallet and mobile phone were taken and he was left with abrasions and bruises to his face and his body. The events were extremely frightening and had a traumatic effect on the victim’s life.
The appellant is a 36 year old man with an extensive criminal history which began in his teenage years. His offending includes many property offences, escaping custody and an armed robbery for which he was sentenced to four years imprisonment in 2000.
The sentencing Judge imposed a single head sentence of seven years imprisonment with a non-parole period of five years. The sentence was backdated to commence on 14 August 2014.
The appellant now argues that the sentence was manifestly excessive.
Background
The circumstances of the offending were very serious. The offending was pre-meditated insofar as the appellant and his co-offender targeted a vulnerable man plainly suffering from a mental illness, namely schizophrenia, and who was experiencing auditory hallucinations at the time of the offending. Both the appellant and the co-offender travelled on the bus with the victim and when he alighted at Mawson Lakes the appellant and the co-offender followed him off the bus and threatened him. The violent attack on the victim included kicking, punching, tackling him and holding his head under some water which was lying on the side of the road. The victim believed they were trying to drown him.
The appellant’s co-offender pleaded guilty to one count of aggravated robbery and accepted for the purpose of the plea that he was involved in the entire course of events with the appellant. The co-offender also accepted that a pair of scissors was involved in the initial encounter with the victim near the Mawson Lakes bus stop. That particular circumstance of aggravation was not proven in the trial of the appellant in the District Court. The circumstance of aggravation which was proved against the appellant was that he committed the offence in company.
Arguments on Appeal
On the appeal, Mr Vadasz, counsel for the appellant, argued that the sentence was manifestly excessive in that the head sentence fell squarely within the middle of the range of penalties appropriate for an armed robbery when the appellant was not to be sentenced for armed robbery but for the offence of robbery aggravated by the use of violence and in the company of another person.
It was submitted that the starting point of seven years for the head sentence is indicative of an error in itself.
It was also submitted that there is an unjustified disparity between the starting point for the sentence of the co-offender and that of the appellant. The co-offender was sentenced for only one count of aggravated robbery, however it encompassed the complete facts of the events which took place from the time the victim alighted from the bus to the completion of the incident, including acceptance by the co-offender of the fact that he brandished a pair of scissors during the initial encounter at the bus stop. Mr Vadasz submitted that given there was nothing else to separate the general role played by both the appellant and the co-offender, the disparity between the starting point for the sentences of both offenders is not justified.
Discussion
I shall deal first with the complaint that there is unjustifiable disparity between the starting points of the two offenders’ head sentences.
The co-offender pleaded guilty to one offence of aggravated robbery. The Judge had received material in the course of the sentencing submissions which indicated that there were positive prospects for the rehabilitation of the co‑offender. In light of that material, the Judge was entitled to sentence the co‑offender on the basis that he was not the prime instigator and, as a young man of 18 years at the time, was vulnerable to the influences of the much older appellant, whose criminal history was far more extensive than his. Additionally, unlike the appellant, the co-offender had expressed contrition and regret for his conduct. All of these circumstances entitled the Judge to adopt a lower starting point for the co-offender.
Despite these considerations, the starting point adopted by the Judge for the co-offender’s head sentence of six years can be accepted as being towards the upper end of the available range. No doubt this rightly reflected the very serious circumstances of the offending which included a violent and, in the case of the co-offender, armed attack on a vulnerable and mentally ill man late at night.
The appellant, on the other hand, was found guilty of two crimes: aggravated attempted robbery and aggravated robbery, albeit that in the case of the appellant only one circumstance of aggravation was proved, namely the fact that the offence was committed in company.
This was, as the Judge rightly described it, an opportunistic, pre-meditated, callous and prolonged attack on a visibly vulnerable man.
In addition, the appellant had at no stage demonstrated any remorse, contrition or regret for his participation in the offending. In these circumstances the objective seriousness of the appellant’s offending did justify a higher starting point than the co-offender.
The question, therefore, is whether a sentence of seven years is manifestly excessive.
It is plain from the sentencing remarks of both the appellant and co‑offender that the Judge was well aware that in contrast to the co-offender the circumstance of aggravation relating to the production or possession or use of a weapon was not proved in the case of the appellant.
In this respect I do not accept the appellant’s argument that in adopting the starting point of seven years the Judge has purported to apply the mid-range of the tariff referred to in R v Place[1] for sentences of armed robbery.
[1] (2002) 81 SASR 395.
Nevertheless it is instructive to again consider what the Court said in Place, in particular that the tariff, even for offences of armed robbery, is not an inflexible one. The Court itself deprecated any attempt to categorise different forms of armed robbery for the purposes of determining sentence. At [108] the Court said:[2]
In these reasons, we have confirmed the general principles that are applicable when sentencing for crimes of armed robbery. We have emphasised the need to consider the individual circumstances of the offence and the offender. No submissions were directed to whether the existing standard should be reviewed. The Director did not seek to revisit the suggestion that was made in Newton that sentences imposed in the District Court in recent years demonstrate that the level of sentences imposed for armed robbery has drifted below the standard to which we have referred. In these circumstances, it is sufficient for us to confirm that the standard remains applicable for the types of offences and offenders which we have, in broad terms, described. We would add only that we disagree with the suggestion in Newton 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.
[2] R v Place (2002) 81 SASR 395 at [108].
Later, in 2014 in R v Wilson; R v Eleche,[3] Kourakis CJ again referred to the Court’s comments in Place and added:[4]
The Court of Criminal Appeal in R v Place established a sentencing standard for offences of armed robbery. In the ordinary course a sentence of six to eight years imprisonment will be imposed for robberies of premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects which appear to be weapons are used to threaten victims. Plainly enough the balance of aggravating or mitigating circumstances struck by a judge in a particular case, will determine where, within the range so set, the sentence will fall. On occasion the individual circumstances of the offence or the offender may bring the case out of the generality of cases to which the standard applies and a higher or lower sentence may properly be imposed.
[footnote omitted]
[3] [2014] SASCFC 73.
[4] R v Wilson; R v Eleche [2014] SASCFC 73 at [35].
In my view this is one such case. The objective seriousness of both the appellant’s and the co-offender’s offending, which included in both cases either one or two aggravating features, was significant. The fact that the appellant was convicted of not one but two offences encompassing the events which occurred from the time they left the bus until the completion of the offences on the other side of the road, together with the fact that the appellant at no stage demonstrated any remorse or contrition, and the fact that he had already received substantial custodial sentences for similar offending, all pointed to the need to impose a sentence which emphasised general as well as personal deterrence.
While it can be accepted that a starting point of seven years for an offence of this nature is at the upper end of the range available for offences of aggravated robbery, the circumstances in which the appellant came to be sentenced did call for a higher sentence.
For these reasons, I consider that there is no unjustified disparity between the sentences imposed on the appellant and the co-offender. Nor do I consider the sentence imposed on the appellant to be outside the range available to the sentencing Judge.
For the sake of completeness I mention that it now appears the backdating of the appellant’s sentence to commence on 14 August 2014 resulted in the appellant gaining the benefit of approximately 14 weeks of time in custody when he was actually serving sentences of imprisonment for unrelated matters. In light of the conclusion I have reached that the appeal should be dismissed and therefore there is no need to resentence, I consider it unnecessary to deal with that apparent anomaly.
I would dismiss the appeal.
DOYLE J: For the reasons given by Kelly J, I agree that the appeal should be dismissed.