R v NEATE - [2006] SASC 194

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Leave to Appeal in Private)
R v NEATE
[2006] SASC 194
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Vanstone)
28 June 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - PROPERTY OFFENCES
Application for leave to appeal against sentence - applicant convicted by jury of offence of aggravated robbery - applicant driver of getaway car - 'soft target' - in protective custody - long history of dishonesty offences - personal and general deterrence. Sentence of 6 years with a non-parole period of 3 years and 6 months not manifestly excessive - leave to appeal refused.
Criminal Law Consolidation Act 1935 s 37(2), referred to.

R v NEATE
[2006] SASC 194
Court of Criminal Appeal: Nyland, Gray and Vanstone JJ
Nyland, Gray and Vanstone JJ:

This is an application for leave to appeal against sentence. The applicant was charged with the crime of aggravated robbery, contrary to the provisions of s 37(2) Criminal Law Consolidation Act 1935. The maximum penalty prescribed for that offence is life imprisonment.
The applicant pleaded not guilty to the charge. He was convicted by unanimous verdict of the jury on 23 September 2005.
On 7 November 2005 a District Court Judge sentenced him to be imprisoned for a period of 6 years and fixed a non-parole period of three years and six months, the sentence to commence from 23 September 2005.
The applicant then appealed against his conviction. On 10 April 2006 a Supreme Court Judge refused leave to appeal.
The applicant was represented by counsel both at the trial and on the hearing of the leave application. The applicant is now unrepresented but has indicated that he wishes his leave application to this Court to be considered in private. He does not wish to appear unrepresented and argue leave himself before the Court.
The circumstances of the offence are that at about 4.40 am on 17 February 2004 the applicant drove another person to a Subway store at South Plympton. The other person entered the store wearing a balaclava and holding a knife. The applicant remained in the car. The other man threatened the store assistant with the knife and demanded money from two tills. He rejoined the applicant with about $400.00 and the two men then drove away. The applicant did not give evidence at the trial but when interviewed by the police admitted being the driver but denied anything more than that.
The applicant subsequently informed the police of the identity of the other person and originally the two men were jointly charged. The other man was not, however, committed for trial and there is currently no charge against him.
At the trial the Judge explained to the jury that the prosecution case against the applicant was in the alternative, that is, either the applicant aided or abetted the other person to commit the offence or the applicant was a party with that person to a joint criminal enterprise. The trial Judge also referred to the alternative verdict of robbery in accordance with the concept of joint criminal enterprise and a further alternative verdict of assisting an offender.
The Judge, when sentencing the applicant following his conviction for the offence of aggravated robbery, indicated that he proposed to sentence him on the footing that he actively participated in the crime by aiding and abetting the other person. He mentioned that apart from the store assistant, at least four other persons were in the store at the time of the offence, one of whom had provided a victim impact statement to the Court.
The Judge referred to the applicant’s personal circumstances which included the fact that he was 35 years of age, that he had a history of drug and alcohol abuse, and had been in a relationship for the past 15 years and had four children aged between five and 13 years. His partner receives a carer’s pension because each of the children has a health or learning difficulty.
The antecedent report discloses a long history of offending which includes breaking and property offences. The Judge agreed with a submission put by the prosecution that the selection of a soft target was of particular concern and that, especially in light of the applicant’s record, personal and general deterrence were important factors. The Judge was told that as a result of the disclosure by the applicant to the police of the identity of the co-offender, the applicant was at risk of retribution in gaol.
The grounds of appeal relied upon by the applicant are that the sentencing Judge failed to give adequate weight to:
1.The fact that the applicant was being sentenced on the basis that he aided and abetted the other person;
2. The effect on the applicant’s family;
3. The fact that applicant was being held in protective custody.
As to the first ground, the argument presented on the leave application before the single Judge appears to have been that although the sentencing Judge referred to the fact that he was sentencing the applicant as an aider and abettor, he had approached the matter on the basis of a joint enterprise. It was argued that the applicant had been unaware at the time that the car which had apparently been borrowed in order to drive the other person to the service station, was not borrowed on the basis of any knowledge that a robbery would be committed at the service station. The applicant first became aware that a robbery was going to be committed when the other man took the balaclava and knife from the vehicle.
The second ground relates to the effect of the sentence on the applicant’s family. That was something that the sentencing Judge referred to in the course of his remarks and which appears to have been taken into account.
The final matter relates to the fact that the applicant is apparently being kept in protective custody. That also seems to be a matter which the Judge bore in mind when imposing the sentence.
We do not consider that the Judge fell into error and sentenced the applicant on the basis of joint enterprise instead of being an aider and abetter. The role he fulfilled as the getaway driver was never in doubt. In any event, on either basis this was a serious crime. It is clear from the Judge’s sentencing remarks that his focus was on the question of deterrence, given the fact that this was a “soft target”. In addition, there were a number of people in the store at the relevant time who undoubtedly suffered a considerable level of shock and stress as a result of being exposed to such a serious incident. The maximum penalty for this offence is life imprisonment. The applicant’s long history of dishonesty offending precludes a lenient approach. In the circumstances we consider that it is not reasonably arguable that the sentence imposed is manifestly excessive. Leave to appeal against the sentence is refused.