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…

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 Melbourne

Details

AGLC: R v Melbourne [2017] SASCFC 11
Case: [2017] SASCFC 11
Decision Date: 17 February 2017

CaseChat Overview and Summary

The appeal concerned a conviction for aggravated robbery and attempted aggravated robbery under the *Criminal Law Consolidation Act 1935* (SA). The appellant sought to overturn his sentence of seven years imprisonment with a five-year non-parole period, arguing it was manifestly excessive. The appeal was heard by Kelly, Vanstone, and Doyle JJ of the Supreme Court of South Australia.

The central legal issue before the court was whether the sentence imposed upon the appellant was demonstrably too severe, considering the nature of the offences and the sentencing of a co-offender. Specifically, the court had to determine if the head sentence of seven years was appropriate for robbery aggravated by violence and being in company, as opposed to armed robbery, and whether any disparity between the appellant's sentence and that of his co-offender was justified.

The court dismissed the appeal, finding the sentence to be appropriate. Kelly J, with whom Vanstone and Doyle JJ agreed, reasoned that the offending was of a serious nature, involving a pre-meditated attack on a vulnerable victim who was suffering from mental illness. The victim was subjected to a violent assault, including being kicked, punched, tackled, and having his head held under water. While acknowledging the sentence was at the upper end of the available range, the court found it was within that range and justified by the gravity of the criminal conduct. The court also addressed the disparity with the co-offender's sentence, explaining that the co-offender's plea of guilty, his youth, his lesser criminal history, his expressed contrition, and his perceived vulnerability to the appellant's influence all justified a lower starting point for his sentence. The appellant's more extensive criminal history and his role as the likely instigator supported a more severe sentence for him.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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