R v Muir

[2015] SASCFC 149

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MUIR

[2015] SASCFC 149

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Peek and The Honourable Justice Lovell)

12 October 2015

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

Appeal against sentence.  Appellant pleaded guilty to aggravated robbery and admitted breaching a good behaviour bond.  He received a head sentence of six years and six months' imprisonment with a non-parole period of four years and four months' imprisonment.  Appellant contended that the sentencing Judge erred in revoking the six-month suspended sentence the subject of the bond and accumulating it to both the head sentence and non-parole period imposed for the aggravated robbery offence.  The approach of the sentencing Judge amounted to an error.  The head sentence of six years' imprisonment for aggravated robbery was not challenged.  The sentencing Judge was correct in accumulating the six-month suspended sentence to the head sentence.  The period of six months should not have been added to the non-parole period.  In resentencing the appellant, a non-parole period of three years and ten months is imposed.

Appeal allowed.

Criminal Law Consolidation Act 1935 (SA) s 137; Criminal Law (Sentencing) Act 1988 (SA) s 32, s 58, referred to.

R v MUIR
[2015] SASCFC 149

Court of Criminal Appeal:       Sulan, Peek and Lovell JJ

1. SULAN J:             This is an appeal against sentence.  The appellant, Matthew Dean Muir, pleaded guilty to aggravated robbery.[1]  He also admitted breaching a good behaviour bond.[2]

   [1]    Criminal Law Consolidation Act 1935 (SA) s 137. Maximum penalty: life imprisonment.

   [2]    Criminal Law (Sentencing) Act 1988 (SA) s 58.

2. In July 2013, the appellant had been convicted of assault.  He was sentenced to six months’ imprisonment which was suspended.  The robbery offence constituted a breach of that suspended sentence bond.

3. On 1 May 2015, the sentencing Judge revoked the six-month suspended sentence and ordered that it be served cumulatively with the sentence for the aggravated robbery, being six years’ imprisonment, with a non-parole period of three years and ten months.  The sentencing Judge had regard to the appellant’s time spent in custody and reduced the nominal sentence for aggravated robbery by 10 per cent on account of his guilty plea.  The appellant received an overall sentence of six years and six months’ imprisonment, with a non-parole period of four years and four months, to commence on 18 November 2013.

4. The appellant contends that the sentencing Judge erred in fixing a head sentence and non-parole period for the offence of aggravated robbery and then accumulating the six-month suspended sentence to both the head sentence and non-parole period.  The respondent contends that the sentencing approach was within the discretion afforded to the sentencing Judge and, even if the Court finds that the Judge made a process error, the ultimate head sentence and non-parole period arrived at is appropriate in all the circumstances.

   Background

5. In the early hours of 14 November 2013, the appellant booked a taxi to collect him at Morphett Vale and transport him to Thebarton.  The purpose of the trip was to obtain methylamphetamine.  The appellant was in possession of a knife, which he claimed he had for his own protection. 

6. When the taxi arrived at Thebarton, the taxi driver requested the fare of $60.  The appellant then put the knife to the taxi driver’s throat and demanded cash.  A struggle ensued.  The taxi driver sustained a cut to his right hand when he grabbed the knife, and a cut to his head.  Eventually, the taxi driver handed over around $230.  The appellant punched the taxi driver in the head two or three times and then absconded.  As a consequence of the attack, the taxi driver suffered both physical and psychological trauma.

7. Police identified the appellant from CCTV images obtained from a camera which had been in the taxi.  When the appellant became aware that police were looking for him, he attended at the local police station on 18 November 2013.  He was arrested and has remained in custody since that date.

   The appellant’s personal circumstances

8. At the time of sentencing, the appellant was 32 years of age.  He was brought up in a dysfunctional family.  His father was an alcoholic and violent towards his mother.  Throughout his childhood, the appellant felt unsafe at home.  His parents separated when he was ten years of age.  Thereafter he lived with his mother.  He regularly visited his father in Victoria.  He left school at the age of 16 and lived with his father for about five years, during which time the two of them travelled between Geelong and Darwin pursuing paid careers in Australian Rules Football. 

9. Subsequently, he returned to live with his mother.  He was residing with her when he was arrested in November 2013. 

10. The sentencing Judge had regard to a report of Mr Fugler, a psychologist, who reported that the appellant has a long history of drug and alcohol abuse which commenced when he was aged about 15.  The appellant’s use of cannabis and methylamphetamine led to him experiencing delusions symptomatic of a drug‑induced psychosis.  The appellant has tried to commit suicide.  Mr Fugler was of the opinion that the appellant suffers from an anti-social personality disorder and has difficulty managing his anger.  He was of the view that the appellant can be assisted by anger management programs. 

11. Whilst the appellant has been in custody, his brother committed suicide.  This resulted in the appellant suffering depression.  The appellant has a three‑year‑old son with whom he has only had telephone contact since the appellant was taken into custody.

    Antecedents 

12. The appellant has previous convictions for numerous offences, many of which involved driving offences.  In 2006, he was convicted of common assault and was fined.  In 2009, he was convicted of assault causing harm and received a sentence of three months and three weeks’ imprisonment, which was suspended.  On appeal, that sentence was reduced to three months’ imprisonment.

13. In July 2013, the appellant was convicted of assault causing harm and was sentenced to six months’ imprisonment, suspended upon him entering into a bond in the sum of $1000 to be of good behaviour for two years.  The offence the subject of this appeal constituted a breach of that suspended sentence bond. 

14. In sentencing the appellant, the Judge said:

    In your case both personal and general deterrence are significant considerations.  Aggravated robbery is a serious offence and as the Supreme Court has made it clear in cases such as R v Place, significant weight must be placed on the need to protect the community in general and vulnerable victims, such as your taxi driver, in particular.

    As I have already observed, this offence was committed during a period of a suspended sentence bond.  In my view there are no good reasons to refrain from revoking your bond.  The term of six months imprisonment is to be served cumulatively on the term of imprisonment I am about to impose for this offence.

    If it were not for your plea of guilty I would have sentenced you to imprisonment for a period of six years and eight months.  There are no factors which, in my view, militate against you receiving the full 10% discount for your early plea.  Your sentence of imprisonment will therefore be reduced to six years imprisonment.

    I now turn to the question of a non-parole period.  I have already referred to a series of factors which indicate to me you are making efforts to turn your life around.  You have the support of a prospective employer, the Aboriginal Offenders and Prisoner Support Service and a desire to reconnect with your infant son, all of which indicates that there is a basis for cautious optimism in terms of your rehabilitation.  In recognition of these factors I fix a non-parole period of three years and 10 months imprisonment.  This results in a total sentence of six years and six months imprisonment and a non-parole period of four years and four months.  Both the sentence and the non-parole period will be taken to have commenced on 18 November 2013 when you were taken into custody.

    The appeal

15. The appellant contends that the sentencing Judge erred by determining a head sentence and non-parole period for the offence of aggravated robbery and then accumulating the six-month suspended sentence to both the head sentence and non-parole period.  Counsel for the respondent submits that after revoking the suspended sentence, the sentencing Judge had a wide discretion in accumulating the six-month term to the sentence imposed for aggravated robbery.  It is contended that determining a notional head sentence and non‑parole period which are then both extended, as opposed to fixing a non‑parole period once the suspended sentence has been accumulated to the notional head sentence for aggravated robbery, does not constitute an error.  In the event that the Court finds that the approach taken by the sentencing Judge was an error, it is submitted that the Court may dismiss the appeal if it determines that the same sentence should have been passed.

    Discussion

16. It is evident from the sentencing Judge’s remarks that he did not determine a notional non-parole period which was then extended to reflect consideration of various sentencing factors.  The ultimate head sentence and non-parole period were arrived at by accumulating the six-month term to both the head sentence and non-parole period. 

17. Section 58(4)(c)(i) of the Criminal Law (Sentencing) Act 1988 (SA)

    
    

    (“the Sentencing Act”) provides that, where a court revokes the suspension of a sentence of imprisonment, the court may direct that the period of the suspended sentence be cumulative on any other sentence or sentences of imprisonment to be served by the defendant.

18. It follows that the usual practice is for the sentencing Judge to determine the head sentence for the offence or offences which the Judge is required to impose, and to then determine whether to revoke the suspended sentence. If the suspended sentence is revoked, the sentencing Judge will then determine whether the whole or part of the suspended sentence should be served and whether it should be cumulative upon the head sentence as determined by the sentencing Judge. That will result in an overall head sentence. Section 32(1)(a) of the Sentencing Act provides that the court must, if it sentences a person to imprisonment, fix a non-parole period.  Sub-section (2) provides that where a sentence of imprisonment is imposed for an offence committed during a period when the prisoner was on a conditional release from a previous sentence of imprisonment, the court, in fixing a non-parole period, must have regard to the total period of imprisonment that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve.

19. It follows that the approach the sentencing Judge should have undertaken was to fix a head sentence for the offence of aggravated robbery and then, having determined to bring the six-month suspended sentence into effect, make that sentence cumulative upon the sentence fixed for robbery. The Judge should determine a non‑parole period having regard to the total period which the appellant was required to serve.

20. It is not mandatory to approach the sentencing process in the manner I have described.  There may be good reasons to determine that the revoked suspended sentence take effect forthwith and order that the sentence for the breaching offence commence at the expiration of the revoked sentence.  However, an overall head sentence should be determined before fixing the non-parole period.

21. The approach of the sentencing Judge amounted to an error.  The sentencing Judge accumulated the six-month suspended sentence both on the head sentence and on the non-parole period.  That was an incorrect approach.  The sentencing Judge, having determined that the head sentence was six years, should have then ordered that the six-month sentence be served cumulatively upon the head sentence, and then fix the non-parole period upon the total sentence of six years and six months.

22. The approach of the sentencing Judge has the effect of distorting the non‑parole period.  That can be illustrated by an example in which a person receives a head sentence of four years and is in breach of a bond with a sentence of two years which had been suspended.  The cumulative total is six years.  A non-parole period of two-thirds the sentence would result in a non-parole period of four years.  If the approach of the sentencing Judge were adopted, the non‑parole period on the head sentence of four years would be two years and eight months.  If two years were added to the head sentence and non-parole period, the result would be a total head sentence of six years, with a non-parole period of four years and eight months.

23. It follows that the Judge’s determination in arriving at a non-parole period amounted to an error.

    Resentencing

24. It falls to this Court to re-sentence the appellant.  The appellant does not submit that there are grounds upon which the admitted breach can be excused.  Aggravated robbery is a serious offence.  The head sentence of six years is not challenged.

25. The appellant has antecedents for violent offending.  He has received two previous suspended sentences for assault.  Further, he has been convicted of numerous driving offences.

26. The sentencing Judge was correct in determining that the sentence for aggravated robbery and the suspended sentence of six months should be served cumulatively.  The only question is the appropriate non-parole period on the head sentence of six years and six months’ imprisonment.  I conclude that the six months the Judge added to the non-parole period should be deducted.

27. The appeal is allowed.  The sentence is set aside.

28. The appellant is re-sentenced to imprisonment for six years and six months, with a non-parole period of three years and ten months, the sentence and non‑parole period to commence on 18 November 2013.

29. PEEK J:                I agree with the orders proposed by Sulan J and with his reasons.

30. LOVELL J:          I agree with the reasons of Sulan J and the orders he proposes.