R v Milroy No. Sccrm-03-262
[2003] SASC 423
•9 December 2003
R v MILROY
[2003] SASC 423
Court of Criminal Appeal: Prior, Bleby and Anderson JJ (ex tempore)
PRIOR J: I agree with Bleby J. The appeal should be allowed.
BLEBY J: The appellant appeals against the sentence imposed upon his conviction on one count of robbery with violence. He pleaded guilty upon committal in the Magistrates Court and was remanded for sentence in the District Court. He was sentenced to four years and six months imprisonment, with a non-parole period of two years, both to commence from 25 March 2003, the date of his arrest.
Section 158 of the Criminal Law Consolidation Act 1935 provided that the maximum penalty for this offence at that time was imprisonment for life. The offence of robbery with violence was then linked in the same section and shared the same maximum penalty with armed robbery, namely imprisonment for life. On 5 July 2003 the section was repealed and replaced (for an offence of this nature) with s 137, and a maximum penalty of 15 years imprisonment. However, in my opinion nothing turns on the fact that the maximum penalty for this offence at the time was life imprisonment. Section 158 of the Criminal Law Consolidation Act at that time prescribed that maximum penalty for a very wide range of robbery offences. The present section deals only with offences at the bottom end of that range, and provides for a maximum penalty of life imprisonment only in certain circumstances of aggravation which are not relevant to this case.
The offence occurred on 25 March 2003 at about 3.45 pm, at a Commonwealth Bank automatic teller machine on the corner of Le Hunte Street and Prospect Road, Kilburn. The victim, after having waited for a woman holding a baby to finish using the automatic teller machine, began withdrawing money from the machine. The appellant was standing nearby. The victim obtained $200 in $50 notes and once in his hands, the appellant grabbed hold of the money. A tug of war over the money ensued. The appellant pushed the victim in the chest with one hand, and threatened to knock him to the ground. The victim stated that he was so scared that he let go of the money, and the appellant took it and ran off down the street. The offence occurred on the corner of busy roads. One man witnessed the robbery, whilst other persons witnessed the appellant’s escape from the scene.
The appellant was apprehended by police on the day of the offence, and later assisted in the recovery of $150 of the $200 that was stolen from the victim. The appellant pleaded guilty to the offence at the earliest possible time.
The appellant is 24 years of age. The sentencing Judge described his background as a “pathetic and sad one”. His parents separated when he was aged 14 and he does not have a good relationship with either. He has two siblings, but only has a somewhat tenuous relationship with one of them. He is single, and has had one prior opposite sex relationship of significance, which had problems in relation to drugs. He completed Year 11 at Toowoomba State High School and upon leaving school he began to focus on using drugs. He gained various kinds of short-term employment, and his last job was in 1999. He is a heroin addict, which he first used at the age of 17. He is also a cannabis user.
He has convictions for larceny and property offences in three States. He has committed no prior offences of violence and has no prior sentences of imprisonment. His offending has focused mainly on obtaining money to buy drugs.
It was accepted by the sentencing Judge that this offence was a “desperate act of stealing money to pay a drug debt” which the appellant believed if he did not pay he would be threatened with physical harm. The appellant has previously participated in a drug rehabilitation program with minimal positive effect. A psychologist, Dr White, is of the opinion that the appellant has severe psychological problems which are unlikely to have a short-term solution, and instead require significant intervention.
The sentencing Judge acknowledged the appellant’s need for help and rehabilitation. However, he considered that his “first duty [was] to the community”, and stated that the fact that an offender is drug addicted is little consolation to victims. He referred to robberies at teller machines as being “prevalent, nasty and [placing] members of the community in a very vulnerable situation”. The sentencing Judge’s starting point was a sentence of six years imprisonment, which he reduced to four and a half years on the basis of the early guilty plea and the appellant’s assistance in recovering the stolen money. In setting a non-parole period of two years, the sentencing Judge wished to give the appellant as much time as possible to be under supervision in order that he may be rehabilitated.
The appellant appeals against the sentence on the grounds that the head sentence is manifestly excessive, that the starting point of six years is manifestly excessive, and that the sentencing Judge placed too much emphasis on general deterrence, and too little on the appellant’s personal circumstances.
For a first offence of armed robbery with no extraordinary features, this Court has confirmed that a starting point in the range of six to eight years imprisonment is appropriate: R v Place (2002) 81 SASR 395. The appellant contends that the sentencing Judge’s starting point elevates this offence to one of armed robbery, whereas the violence was at the lower end of the scale, with no damage to the victim other than initial shock and apprehension of injury.
The sentencing Judge placed substantial weight on what he described as his duty to the community. Whilst that is not a relevant criterion mentioned in s 10 of the Criminal Law (Sentencing) Act 1988, I consider that when that observation is placed in the context of what else the sentencing Judge said, his Honour was placing particular emphasis on the need for general deterrence against this type of offending.
There is no doubt that this type of violence is particularly offensive and requires courts to make quite clear that deterrence must play an important part in the sentencing process. Although this was relatively minor as robberies go, a custodial sentence was undoubtedly called for.
However, in the scale of robbery with violence, this was at the lower end of the scale. It was the appellant’s first offence involving violence. It was his first sentence of imprisonment.
The appellant’s personal circumstances and background were, as the sentencing Judge observed, “pathetic and sad”. He is in need of help. This offence was impulsive and an act of desperation. In my opinion, it did not warrant a starting point equivalent to that of an armed robbery. Furthermore, the greater part of the proceeds of the robbery were, with the assistance of the appellant, recovered. The appellant cooperated with the police when arrested on the day of the offence, and entered his plea of guilty at the first possible opportunity.
In those circumstances, I consider that the sentence imposed was manifestly excessive. In my opinion a more appropriate starting point would be imprisonment for a period of four years. For his early plea and cooperation I would reduce the sentence to a head sentence of three years. Upon his release from prison the appellant will require substantial and careful supervision if he is to have any hope of rehabilitation. In my opinion he should have that opportunity. I would therefore fix a non-parole period of eighteen months.
Accordingly, in my opinion the appeal should be allowed, the sentence should be set aside and the appellant should be re-sentenced to a period of three years imprisonment with a non-parole period of 18 months. Both the head sentence and non-parole period should commence from 25 March 2003.
ANDERSON J: I agree that the appeal should be allowed.