R v O'LOUGHLIN - [2009] SASC 396

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v O'LOUGHLIN
[2009] SASC 396
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kourakis)
21 December 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
Application for permission to appeal against sentence - following guilty pleas, applicant convicted of offences of using motor vehicle without consent and aggravated robbery - sentence of imprisonment of three months and two weeks imposed in respect of offence of using motor vehicle without consent - sentence of imprisonment of five years imposed with respect to offence of aggravated robbery - sentences to be served cumulatively - total sentence of five years, three months and two weeks to be served cumulatively on an earlier sentence imposed, of six years and three months with non-parole of four years and two months - that sentence commenced on 21 October 2006 - applicant liable to serve total cumulative sentence of 11 years, six months and two weeks’ imprisonment - remaining non-parole period extended by 32 months, resulting in extended non-parole period of 54 months commencing on 20 February 2009 - whether head sentence and non-parole period excessive having regard to total term of imprisonment faced by applicant as result of accumulation of earlier sentence and sentences the subject of present appeal - whether Judge had inadequate regard to principle of totality.
Held: permission to appeal against sentence refused - sentencing remarks of Judge identified to applicant that he had regard to relevant principles of totality - sentences imposed, including order that they be served cumulatively well within Judge's sentencing discretion - non-parole period lenient in circumstances.

R v O'LOUGHLIN
[2009] SASC 396
Court of Criminal Appeal Gray, Sulan and Kourakis JJ
GRAY J.
Permission to Appeal

This is an application for permission to appeal against sentence.
The applicant, Peter Ian O’Loughlin, was charged on Information with eight counts. The first two counts alleged offences on 12 October 2006 and in particular that the applicant, together with Shane Ashley Miller, committed the offences of using a motor vehicle without consent and aggravated robbery. The third count alleged that the applicant on 18 October 2006 threatened to cause harm to Troy Frederick Vonderwall. The fourth count alleged that the applicant committed the offence of aggravated assault on 20 October 2006, the alleged victim being Troy Frederick Vonderwall. The fifth and sixth counts alleged that the applicant, jointly with Jeffrey Scott Vaughan and Shane Ashley Miller, used a motor vehicle without consent and committed the offence of aggravated robbery. The seventh and eighth counts alleged that on 21 October 2006 the applicant, jointly with Vaughan and Miller, committed the offences of aggravated serious criminal trespass and aggravated assault.
On 18 September 2008, following pleas of guilty, the applicant was sentenced on the fourth, fifth, sixth and eighth counts. As a consequence, the applicant was sentenced with respect to two counts of aggravated assault, one count of using a motor vehicle without consent and one count of aggravated robbery. The sentencing Judge imposed a total sentence of six years and three months in respect of the offending. A non-parole period of four years and two months was fixed. The sentence commenced on 21 October 2006. At that time, the first and second counts in which the applicant was jointly charged with Miller were listed for trial on 1 December 2008.
It is to be noted that on 18 September 2008, the Crown sought that sentencing be deferred until all charges on the Information had been determined. Counsel for the applicant urged the Judge to sentence immediately because of the delay that was expected to arise before the other matters were resolved. The sentencing Judge accepted that submission and proceeded to sentence the applicant forthwith.
On 2 December 2008, the second day of the trial with respect to counts one and two, the applicant entered guilty pleas with respect to those counts.
On 20 February 2009, the applicant was sentenced with respect to the first and second counts, the offences of using a motor vehicle without consent and aggravated robbery. A sentence of imprisonment of three months and two weeks was imposed in respect of the offence of using a motor vehicle without consent. With respect to the offence of aggravated robbery a sentence of five years’ imprisonment was imposed. The Judge directed that these two sentences be served cumulatively.
The Judge then addressed the fact that the applicant was serving the sentence imposed on 18 September 2008. The Judge determined that it was appropriate that the sentences that he imposed on this occasion be served cumulatively on that previous sentence. Accordingly, the applicant became subject to a total period of imprisonment of 11 years, six months and two weeks.
The Judge was then obliged to extend the existing non-parole period. As earlier noted, the existing non-parole period had been fixed at four years and two months, commencing on 21 October 2006. Consequently, at the time of sentencing in respect of the offences the subject of the present application, the applicant had approximately 22 months of the pre-existing non-parole period to serve. The Judge extended the non-parole period by a period of 32 months. This resulted in an extended non-parole period of 54 months, approximately four years and six months. The Judge directed that this extended non-parole period commenced on 20 February 2009.
Looked at overall, it may be seen that the applicant had been sentenced to a total period of imprisonment of 11 years, six months and two weeks. He commenced serving that total period of imprisonment on 21 October 2006. The sentence imposed the subject of the present application being cumulative on the earlier sentence, will not commence until 21 January 2013. The applicant will be eligible for parole in August 2013.
Against this background, the applicant sought permission to appeal against the sentences imposed on 20 February 2009; that is, the sentence imposed on counts one and two on the Information, the offences of using a motor vehicle without consent and aggravated robbery.
The sentencing Judge summarised the circumstances of the applicant’s offending:
At about 2.30 p.m. on 12 October 2006 you carried out the robbery at the Clearview post office in company with another male. You were each wearing dark blue overalls and balaclavas and were each carrying a weapon. You stole $3,585. The vehicle which is the subject of count 1 was used for your getaway. At the time of the robbery the licensee of the post office was in a room at the back. An employee who had been at the counter saw one of the two robbers run towards her with a knife which looked like a machete. She activated the panic alarm before running to the back of the shop. She then pushed the door to the main room closed and told the licensee that they were getting robbed. The licensee watched one of the robbers leaning over the counter and taking money from the till.
I have heard the victim impact statement of the licensee. He has been forced to sell the business, his health has suffered and he has suffered a financial loss.
These offences give rise to issues of both general and personal deterrence. The court has an obligation to protect persons such as employees of post offices whilst they are carrying out the normal duties of their employment.
The applicant had previous convictions including offences of dishonesty and offences of violence leading to terms of imprisonment. The sentencing Judge had regard to all relevant personal factors relating to the applicant and in particular to his prospects of rehabilitation.
On the hearing of the application, counsel for the applicant submitted that the head sentence and non-parole period were excessive having regard to the total term of imprisonment that the applicant faced as a result of the accumulation of the earlier sentence and the sentences the subject of the present appeal. In particular it was argued that inadequate regard was had to the principle of totality.
The sentencing Judge addressed the principle of totality in the following terms:
I accept the submission of the prosecutor that you are to be sentenced as at today’s date for the current offences, not on the basis of a notional sentence for all offences as at September last year. The prosecutor submitted that in carrying out an instinctive synthesis I should not make a separate identifiable reduction for totality. However, I am required to look at the totality of the punishment imposed and consider whether, even though justified in the abstract, the actual sentence is more than is required for the purposes of punishment and deterrence. I need to consider whether the sentence is a crushing one. It is proper to make some allowance for the fact that a term of imprisonment has already been served for offences that are a part of the same pattern of conduct. On the other hand, I must be careful not to take a bulk discount approach.
It was accepted on the hearing of the application that this was a correct statement of the principles with respect to totality. However, it was argued that when the Judge came to consider the sentences to be imposed he failed to apply those principles.
In my view this submission is without substance. The Judge plainly identified to the applicant through the sentencing remarks that he had regard to the relevant principles and was aware of the need to impose a sentence that was not crushing in all the circumstances.
The sentences imposed, including the order that they be served cumulatively, were well within the Judge’s sentencing discretion. I do not consider, having regard to the totality of the applicant’s offending, that the ordering of those sentences to be cumulative on the existing sentence was, in the circumstances, outside the Judge’s sentencing discretion.
The offending the subject of the sentences under appeal was grave. Given the applicant’s criminal and personal antecedents, his prospects for rehabilitation did not call for any less a sentence. The non-parole period was lenient in the circumstances.
The application for permission to appeal was issued well out of time. The explanation for the delay appears to have rested with legal advisers acting on behalf of the applicant. The applicant had provided prompt instructions that he wished to appeal. In the circumstances I would extend time to appeal.
I would dismiss this application for permission to appeal.
SULAN J: I would refuse the application for permission to appeal. I agree with the reasons of Gray J.
KOURAKIS J: I would refuse the application for permission to appeal. I agree with the reasons of Gray J.