R v Newton

R v NEWTON
[2001] SASC 36
Court of Criminal Appeal: Perry, Wicks and Gray JJ

PERRY J. This is an application by the Director of Public Prosecutions for leave to appeal against the sentence imposed upon the respondent in the District Court, following her plea of guilty to a charge of armed robbery.
The learned sentencing judge imposed a sentence of imprisonment of 3 years and 6 months against which he fixed a non-parole period of 9 months. He directed that the head sentence and the non-parole period both commence on 15 June 2001, being the day upon which the respondent was taken into custody.
The offence occurred on the preceding day, that is, on 14 June 2001, at about 4.45 pm. A few minutes beforehand the victim, a woman then aged 27 years, had made a withdrawal at an ATM machine on the north-west corner of Victoria Square. She then bought a packet of cigarettes at a shop in Grote Street.
As she was walking back to the SGIC building in Victoria Square, which is where she worked, she was accosted by the respondent, who asked her for a cigarette. The victim offered her one, whereupon the respondent said that she had seen the victim go to the ATM.
The respondent then demanded money, at the same time moving closer to the victim, and stating that she had been in gaol and “been in trouble”. The respondent grabbed the victim by the left shoulder and pulled her closer, at which stage the victim felt a prick to the lower right abdomen. The victim then noticed that the respondent had a syringe, which appeared to be empty, in her right hand. The respondent said that she had just got out of gaol and had AIDS.
The victim proceeded to hand her purse over to the respondent, who removed all of the money from it, about $80, and handed the purse back. The respondent then ran along a side street to Franklin Street, past the GPO, eventually disappearing down the lane leading off King William Street running along the south side of the Town Hall.
As it turned out, the respondent had been released on an unrelated matter from the cells of the Adelaide Magistrates Court at about 3.15 pm on the day of the offence. When she was discharged from custody, amongst her property returned to her was the syringe in question.
The respondent is a heroin addict. She was “hanging out” at the time of the robbery and desperate for money to get a “fix”.
Contrary to her assertion to the victim, the respondent does not have AIDS. However she has tested positive to hepatitis C, which was believed to be dormant at the time.
Tests undertaken by the victim indicated that at the time the respondent was sentenced the victim had not contracted hepatitis C, but it was possible that ongoing tests might prove positive.
The respondent is a young woman, born on 21 October 1977. She was 23 at the time of the offence. She has a 6 year old child who lives with the child’s father in Melbourne.
The respondent had not previously been in gaol. Apart from a conviction for a traffic offence, she had only one previous conviction, namely, loitering for the purposes of prostitution. That conviction was recorded against her in Melbourne in August 2000.
The learned sentencing judge had the benefit of a report from a psychologist, Dr Jack White. From this it appears that the respondent’s parents divorced when she was aged 13. Before then and subsequently, she had a turbulent and unsettled childhood, eventually drifting into substance abuse. After leaving school, she obtained fragmentary, unskilled employment.
When she became addicted to heroin, she began working as a prostitute in Melbourne and later in Adelaide. That employment was punctuated by episodes of violent abuse by “clients”.
Dr White concluded that the respondent was extremely stressed, depressed, and had the perception that she had limited support from friends and family. She had turned to illicit drugs in an effort to cope with what the psychologist described as “elevated symptoms of anxiety, largely related to the breakdown in her family relationships”.
When the respondent was arrested on the day after the offending, she denied any involvement. However, she pleaded guilty on her first arraignment in the District Court.
The learned sentencing judge indicated that he gave credit for the plea, although he did not indicate the extent. He said that he was giving “a full discount”.
The learned sentencing judge had before him a letter from the respondent indicating her remorse and her desire to rehabilitate herself. While in custody the respondent had been on a methadone program and had been heroin-free.
Against that background, the Director complains in his application for leave to appeal:
“The learned sentencing judge erred in imposing a head sentence and a non-parole period which was manifestly inadequate. In particular the sentence:
(a)fails to maintain an appropriate standard of punishment for the crime of Armed Robbery;
(b)is so disproportionate to the seriousness of the crime as to shock the public conscience;
(c)the head sentence and non-parole period set fail to adequately reflect principles of general deterrence for the crime of Armed Robbery.”
The gravamen of the argument advanced by the Director was as to the complaint which finds expression in ground (a), namely that the sentence under review fails to maintain an appropriate standard of punishment for the crime of armed robbery.
In support of that contention, the Director proffered an affidavit sworn by Ms Telfer, a solicitor in the Office of the Director of Public Prosecutions, who had researched sentences handed down in the District Court for the offence of armed robbery between 19 December 2000 and 1 November 2001. In her research, she had regard to the sentencing remarks published in each matter, the offender’s age, gender and criminal antecedents, the weapon used and the location of the offence. The table also indicates whether or not there was a plea of guilty. She summarised the results of her research in tabular form.
Some 38 cases are referred to in the table.
Subsequently, the Director delivered to the Court the sentencing remarks made in the cases digested in the table. Having regard to my view as to the disposal of the application, I have not had regard to the sentencing remarks.
The Director offered the table not, as is often the case when such statistics are offered to the court, to indicate the range of sentences commonly imposed for offences of the relevant class, with a view to suggesting that the sentence in question lies outside the range. On the contrary, the schedule was presented in order to support the argument that the level of sentences imposed in the District Court had drifted below what he suggested was the “tariff” which had been laid down in authoritative decisions of this Court over many years.
It must be accepted that on the face of it, a not insignificant number of cases in the table appear to reflect an approach which falls below the level set by the so-called “tariff”.
The Director submitted that if the Court accepted that view of the statistics, that circumstance added to the desirability that this Court should intervene in this case and reaffirm the so-called “tariff”.
At the same time the Director indicated that he would not be “troubled” if the Court did not interfere with the sentence under review. He emphasised that the principal purpose of the application was to offer to the Court an opportunity of laying down or reaffirming principles which might guide the exercise by sentencing courts engaged in the task of sentencing for the offence of armed robbery.
As I said recently in the case of R v Powell:[1]
“It must be accepted that an application by the Crown for leave to appeal against sentence “should only be granted in the rare and exceptional case”.[2] With that qualification, intervention by an appellate court may be justified:
‘... to enable the courts to establish and maintain adequate standards of punishment for a crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.’”[3] (emphasis added)
[1] Court of Criminal Appeal, 21 December 2001, judgment No [2001] SASC 450 (unreported) at para 31.
[2] Everett v R (1994) 181 CLR 295 per Brennan, Deane, Dawson and Gaudron JJ at 305.
[3] R v Osenkowski (1982) 30 SASR 212 at 213.
As was the case in Powell, it is the first of those criteria upon which the Crown principally relies in this case.
Given that to be the case, having regard to the decision of the High Court in Wong and Anor v The Queen,[4] a question arises as to whether or not it might be thought necessary to modify the approach traditionally adopted by this Court in a case such as this, where the principal focus of the application for leave to appeal by the Crown is to obtain a pronouncement which will set or reaffirm what might be thought to be appropriate sentencing standards.
[4] [2001] HCA 64, 15 November 2001 (unreported).
The full implications of the decision of the High Court in Wong in its impact upon the role of an appeal court in the maintenance of appropriate sentencing standards may shortly be considered by a Court of Criminal Appeal constitute by five members, in the matter of Place v DPP. The appeal in Place is listed for hearing a little later this month.
Given the fact that Place concerns sentences imposed in the District Court for a series of armed robberies, the level of sentencing for this offence in that court will no doubt come under scrutiny in Place, even although it is not a Crown appeal.
I would not wish to offer a view as to the impact of the decision in Wong upon what has been the traditional approach role of the CCA in this State in such matters, if to do so would pre-empt or embarrass the deliberations of the specially constituted court which is to deal with Place.
As I understand the decision in Wong, in that case the High Court was principally concerned to pronounce upon the legitimacy of a “guideline judgment” pronounced by the Court of Criminal Appeal of New South Wales. The “guideline judgment” was expressed in the form of a table which set out suggested sentencing ranges intended to apply to couriers and persons low in the hierarchy of organisations concerned in the importation of narcotics. The table provided for escalating penalties, depending upon the weight of the drug the subject of the offending.
The majority in Wong were of the view that at least with respect to Federal offences,[5] publication of a guideline judgment, at any rate in that form, was erroneous.[6]
[5] Specific statutory provisions in New South Wales and Western Australia might authorise “guideline judgments”.
[6] This would clearly seem to be the view of Gaudron, Gummow and Hayne JJ in their joint judgment, and Kirby J in his separate judgment. Gleeson CJ found that “valid criticism” could be advanced as to the use which might be made of the guidelines in future cases and Callinan J “strongly” doubted, but without deciding the question, that the formulation and application of the guidelines could be a proper exercise of the judicial power of the Commonwealth.
On the other hand, I do not read any of the judgments in Wong as denying the legitimacy of the role of appellate courts to define, by appropriate means, sentencing standards for particular classes of case.
As to what may constitute appropriate means of performing that role, the joint judgment of Gaudron, Gummow and Hayne JJ is apposite. Their Honours were at pains to point out:
“83........ There is an important distinction between a court articulating the principles which do, or should, underpin the determination of a particular sentence and the publication of the expected or intended results of future cases. Articulation of applicable principle is central to the reasoned exercise of jurisdiction in the particular matters before the court. By contrast, the publication of expected or intended results of future cases is not within the jurisdiction of the powers of the court.”
In the course of the reasoning which led to that observation, reference was made to the approach of this Court in Police v Cadd.[7] The dictum of Doyle CJ in Cadd:
“That the punishment should be ‘imprisonment in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment .......’.”[8]
was cited with approval. The joint judgment continues:
“62.The guidance given [in Cadd] was expressed as being about the type of punishment that should ordinarily be exacted: actual imprisonment rather than a suspended sentence. No suggestion was made about how long a sentence should be imposed. The real content of the guidance lay in the reasons which were given for the stated conclusion. It was there that meaning was given to ‘ordinary’ in the expression ‘ordinary case of contumacious offending’ and it was in the reasons that guidance was given about the criteria that should be applied in exercising the discretion in sentencing an offender for the offence in question.”
[7] (1997) 69 SASR 150.
[8] Ibid at 171.
On the other hand, it was acknowledged in the joint judgment that a principled approach to the formulation of a sentencing standard by reference to a range may not necessarily be erroneous: see the following passage in the joint judgment:
58.......... It follows that for a court to state what should be the range within which some or all future exercises of discretion should fall, must carry with it a set of implicit or explicit assumptions about what is, or should be regarded as, the kind of case which will justify a sentence within the specified range. It is those assumptions that may reflect or embody relevant principle, not the result.
59.Similarly, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.”
In this State it has not been the practice to refer to or propound “guideline judgments”. However, from time to time this Court has referred to, and formulated, what has been described as a “tariff” or “standard”.
The question of a “tariff” or sentencing standard for armed robbery has frequently attracted the attention of this Court. For example, in DPP v Fermaner,[9] Matheson J, with whose judgment Prior and Olsson JJ agreed, after referring to Spiero,[10] Brett[11] and Thomson,[12] observed:[13]
“Mr Rofe pointed out that the appropriate standard for armed robbery has been set by this Court on a number of occasions since 1979, and referred, inter alia, to the judgments of the Court of Criminal Appeal in the case of R v Prendergast.[14] ......... Counsel for the respondent did not dispute that the appropriate standard is in the range of eight to twelve years imprisonment in all but very exceptional cases.”
[9] (1994) 61 SASR 447.
[10] (1979) 22 SASR 543.
[11] (1987) 140 LSJS 343.
[12] Court of Criminal Appeal, 21 May 1991, judgment No S2870 (unreported).
[13] Ibid 448-449.
[14] (1988) 147 LSJS 486 at 487-488.
After the Truth in Sentencing legislation, this converted to a so-called “tariff” of six to eight years.[15]
[15] See R v Drumgoon, Court of Criminal Appeal, 13 December 1995, judgment S538.2 (unreported).
This Court has acknowledged that the so-called standard should not be regarded as “inflexible”, and that at the end of the day it is necessary for the sentencing judge to fix a sentence which is proportionate to the gravity of the crime. See, for example, R v Hooper,[16] where Cox J, with whom Olsson and Mullighan JJ agreed, observed:
“It is necessary to say again that a penalty range or tariff for a particular crime, established by the practice of sentencing judges or by decisions made on appeal, is not something rigid and immutable from which no departure, certainly no upwards departure, may ever be made. Any standard range is intended to accommodate the ordinary run of cases, but there will be exceptional cases from time to time that fall outside the range. See The Queen v King,[17] The Queen v Prendergast,[18] R v Nixon.[19] The overriding principle is always the need to fix a sentence that is proportionate to the gravity of the offence - the principle of proportionality, as it has been called.” (emphasis added)
[16] (1995) 64 SASR 480; 80 A Crim R 147.
[17] (1988) 48 SASR 555; (1988) A Crim R 412.
[18] (1988) 147 LSJS 486 at 487-8.
[19] (1993) 66 A Crim R 83 at 88-9.
Given that the maximum sentence laid down in the Criminal Law Consolidation Act 1935 for the offence of armed robbery is life imprisonment,[20] the application of the so-called “tariff” must be accompanied by a good deal of flexibility. One reason for this is because the fixation of a maximum penalty by the legislature must be taken as an indication that there will be some cases which warrant the maximum penalty or something close to it.
[20] Section 158.
There is the further factor that the offence of armed robbery may be committed in a wide range of circumstances, not all attracting the same degree of culpability.
At one end of the scale is the large-scale armed hold-up of a bank, a credit union or other business, often planned and often involving a firearm. At the other end is what might be described as an armed robbery taking the form of a “street offence” where a victim is apprehended in the street by a robber who might brandish a penknife or similar implement, and make off with a small amount of cash.
If a period of six to eight years imprisonment is appropriate for what is clearly the more serious class of offending, such as a bank hold-up, or armed robberies committed against business houses which are “vulnerable targets” such as chemist shops or service stations trading late at night, it is at least arguable that it could hardly be regarded as an appropriate tariff for what I have described as the simple “street offence”. The so-called “tariff” has been formulated, so far as I can see from the authorities, by reference to the former rather than to the latter category of offence,[21] assuming the legitimacy of recognising them as separate categories.
[21] See, for example, the armed hold-ups considered by the Court of Criminal Appeal in the cases of Dorning (1981) 27 SASR 481 (a service station, a drive-in theatre, and an hotel), King (1988) 48 SASR 557 (a chemist shop), Duke and Knowles (1987) 46 SASR 118 (a chemist shop, a trailer-hiring business, and a bank), Prendergast (1988) 147 LSJS 486 (a bank), Hoare (No 2), (1989) judgment No 2018 (unreported) (a pizza bar), Hooper (1995) 64 SASR 480 (a bank), Tichy (1982) 30 SASR 84 (a chemist shop), Brett (1987) 140 LSJS 343 (three chemist shops), Fermaner (1994) 62 SASR 447 (a service station), Spiero (1979) 22 SASR 543 (a chemist shop), Drumgoon, judgment No S5382, 13 December 1995 (unreported) (a credit union), Rooke judgment No S6738, 19 June 1998 (unreported) (a service station) and Lumsden, judgment No [2000] SASC 49, 1 March 2000 (unreported) (a delicatessen).
It seems to me that this case ought to be regarded as an aggravated example of what I have described as the “street offence” class of this offence. The use of the syringe undoubtedly must be regarded as a seriously aggravating circumstance. [22]
[22] See, for example, R v Percy, Court of Criminal Appeal, 19 November 1991, judgment No S3140 (unreported) per Zelling AJ, and Mills v The Queen (1997) 17 WAR 518.
I should make it clear that my use of the expression “street offence” is not intended to reflect the view that offences of that class as I have described them are other than serious and would not ordinarily deserve a custodial prison sentence of reasonable severity. But the question arises as to whether such offences ought to be regarded as objectively so serious as the typical armed hold-up of a bank.

Questions which in my view it would be necessary to address if this Court were to accept the invitation of the Crown to use this case as a vehicle within which to consider whether, in sentencing for armed robbery, the District Court is maintaining an appropriate standard of punishment, include:
(a)     Given that the so-called standard or tariff of 6 to 8 years imprisonment been set, or at least recognised, by the Court of Criminal Appeal as appropriate for armed hold-ups of banks, credit unions, vulnerable businesses and the like, is it an appropriate standard or tariff to apply to what I have described as simple street offences?
(b)     Given that it was set as long ago as 1979,[23] would it not be appropriate in any event to consider whether it should be increased?
(c)     Is a tariff involving suggested sentences of imprisonment falling within a band of 2 years sufficient to accommodate the varied circumstances in which the offence may be committed, depending, of course, upon the characterisation of the offences to which it is said to be applicable?
(d)     Is the fact that a not insignificant number of recent cases in the District Court involving sentencing for this offence have resulted in the imposition of a sentence which, on the face of it, is somewhat lower than that standard or tariff, a reflection of a view that justice demands a different approach to sentencing for less serious instances of this offence?
(e)     Is the formulation or prescription by the Court of Criminal Appeal of the so-called tariff for armed robbery cases in terms of a suggested prison sentence of a given duration consistent with the decision of the High Court in Wong?
[23]    See Spiero (supra).
Having raised those questions, given that it seems likely that the ongoing appropriateness and applicability of the tariff will shortly come under review in Place, I do not consider that it would be appropriate to grant leave to the Crown to appeal against the sentence imposed in this case. If leave were to be given, I would not feel able to avoid dealing with the questions to which I have referred, a task which would seem inappropriate to pursue at this stage, given the imminence of the hearing in Place.
I am fortified in that view by reason of the intimation given by the Director that he did not necessarily seek a variation of the sentence in fact imposed in this case.
After Place has been determined, the Crown is free to bring an appeal in a case in which the question which it seeks to agitate in this case may be addressed, in the light of the decision given in Place.
For these reasons, I would dismiss the application for leave to appeal.
WICKS J I agree that the application of the Director of Public Prosecutions for leave to appeal in this matter be dismissed for the reasons given by Perry J.
GRAY J. This is a Crown application for leave to appeal against sentence.
On 2 October 2001, the respondent, Charlotte Emma Newton pleaded guilty to armed robbery.[24] She was convicted and sentenced to imprisonment for three years and six months. A non-parole period of nine months was fixed.
[24] “Charlotte Emma Newton on the 14^th June, 2001 at Adelaide, being armed with an offensive instrument, namely a syringe, robbed Natalie Ann Doyle of money in the sum of about $80. Contrary to section 158(a) of the Criminal Law Consolidation Act 1935 (SA).”
The maximum sentence for the offence of armed robbery is imprisonment for life. Extenuating circumstances both in relation to the offence and the respondent’s personal antecedents were advanced during sentencing submissions. The sentencing judge accepted those circumstances and extended considerable leniency to the respondent. He also gave full discount for her early plea of guilty.
On the application for leave, the Crown submitted that the sentence imposed was manifestly inadequate.[25] It was said that the sentence:
- failed to maintain an appropriate standard of punishment for the crime of armed robbery;
- was so disproportionate to the seriousness of the crime as to shock the public conscience;
[25] Everett v The Queen (1994) 181 CLR 295 at 299
It was further submitted that the head sentence and non-parole period failed to adequately reflect the principles of general deterrence for the crime of armed robbery.
The Crown did not suggest that this Court should necessarily increase the sentence. It was acknowledged that if such a course was followed Ms Newton may be justifiably aggrieved and exposed to double jeopardy.
The Crown said that the sentencing judge’s approach to this case was too lenient and that such an approach was being frequently adopted in other armed robbery cases. A table listing of sentences imposed for armed robbery by the District Court over the previous 12 months was proffered to illustrate this erroneous trend. The sentences were contrasted with the remarks of the Court of Criminal Appeal providing guidance to judges sentencing for armed robbery[26]. It was submitted that the guidance provided was not being followed.
[26] R v Hooper (1994-1995) 64 SASR 480, R v Lumsden [2000] SASC 49
The table is of limited assistance. Difficulties arise with any attempted comparisons. Even after a careful analysis of all of the sentencing remarks of the cases listed, it is not possible to extrapolate useful similarities between the circumstances of the offending and the personal antecedents of each individual offender. The circumstances of armed robberies are variable as are the motivations and reasons for their commission.
This is not an appropriate vehicle for leave. Issues relating to sentencing for armed robbery and the implications of the High Court’s decision in Wong v R[27] will be considered by a specially constituted Court of Criminal Appeal in the near future. This will be a more suitable occasion for the Crown to agitate their concerns.
[27] [2001] HCA 64
The application for leave to appeal must be dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. Court of Criminal Appeal, 21 December 2001, judgment No [2001] SASC 450 (unreported) at para 31.
2.   Everett v R (1994) 181 CLR 295 per Brennan, Deane, Dawson and Gaudron JJ at 305.
3.   R v Osenkowski (1982) 30 SASR 212 at 213.
4. [2001] HCA 64, 15 November 2001 (unreported).
5.   Specific statutory provisions in New South Wales and Western Australia might authorise “guideline judgments”.
6.   This would clearly seem to be the view of Gaudron, Gummow and Hayne JJ in their joint judgment, and Kirby J in his separate judgment. Gleeson CJ found that “valid criticism” could be advanced as to the use which might be made of the guidelines in future cases and Callinan J “strongly” doubted, but without deciding the question, that the formulation and application of the guidelines could be a proper exercise of the judicial power of the Commonwealth.
7. (1997) 69 SASR 150.
8.   Ibid at 171.
9. (1994) 61 SASR 447.
10. (1979) 22 SASR 543.
11. (1987) 140 LSJS 343.
12.   Court of Criminal Appeal, 21 May 1991, judgment No S2870 (unreported).
13.   Ibid 448-449.
14. (1988) 147 LSJS 486 at 487-488.
15.   See R v Drumgoon, Court of Criminal Appeal, 13 December 1995, judgment S538.2 (unreported).
16. (1995) 64 SASR 480; 80 A Crim R 147.
17. (1988) 48 SASR 555; (1988) A Crim R 412.
18. (1988) 147 LSJS 486 at 487-8.
19. (1993) 66 A Crim R 83 at 88-9.
20.   Section 158.
21.   See, for example, the armed hold-ups considered by the Court of Criminal Appeal in the cases of Dorning (1981) 27 SASR 481 (a service station, a drive-in theatre, and an hotel), King (1988) 48 SASR 557 (a chemist shop), Duke and Knowles (1987) 46 SASR 118 (a chemist shop, a trailer-hiring business, and a bank), Prendergast (1988) 147 LSJS 486 (a bank), Hoare (No 2), (1989) judgment No 2018 (unreported) (a pizza bar), Hooper (1995) 64 SASR 480 (a bank), Tichy (1982) 30 SASR 84 (a chemist shop), Brett (1987) 140 LSJS 343 (three chemist shops), Fermaner (1994) 62 SASR 447 (a service station), Spiero (1979) 22 SASR 543 (a chemist shop), Drumgoon, judgment No S5382, 13 December 1995 (unreported) (a credit union), Rooke judgment No S6738, 19 June 1998 (unreported) (a service station) and Lumsden, judgment No [2000] SASC 49, 1 March 2000 (unreported) (a delicatessen).
22.   See, for example, R v Percy, Court of Criminal Appeal, 19 November 1991, judgment No S3140 (unreported) per Zelling AJ, and Mills v The Queen (1997) 17 WAR 518.
23.   See Spiero (supra).
24.   “Charlotte Emma Newton on the 14^th June, 2001 at Adelaide, being armed with an offensive instrument, namely a syringe, robbed Natalie Ann Doyle of money in the sum of about $80. Contrary to section 158(a) of the Criminal Law Consolidation Act 1935 (SA).”
25.   Everett v The Queen (1994) 181 CLR 295 at 299
26.   R v Hooper (1994-1995) 64 SASR 480, R v Lumsden [2000] SASC 49
27. [2001] HCA 64

[2002] SASC 36

8 February 2002