R v Pike No. Sccrm-02-395

R v PIKE
[2003] SASC 53
Court of Criminal Appeal: Doyle CJ, Duggan and Gray JJ (ex tempore)

DOYLE CJ: This is an appeal against sentence.
The appellant pleaded guilty to a number of offences in the District Court. The Judge imposed sentences which, to some extent, he made cumulative and to some extent concurrent. The end result was a head sentence of ten years’ imprisonment and a non-parole period of six years’ imprisonment.
The appellant complains that the sentence is excessive.
The circumstances of the offending are as follows. All offences occurred at Greenwith, an Adelaide suburb, between about 6.45am and 8am one morning. In fairly quick succession the appellant broke into five houses from each of which he stole some personal property belonging to the occupants. Four of the houses were occupied and in each of those houses there was some form of confrontation between the appellant and one or more of the occupants. One of the houses was unoccupied.
As to the four occupied houses the appellant pleaded guilty to four counts of the aggravated offence of serious criminal trespass. The maximum sentence in each case is imprisonment for life. As to the unoccupied house, the appellant pleaded guilty to the offence of serious criminal trespass in a place of residence, the maximum penalty for which is imprisonment for fifteen years. The appellant also pleaded guilty to five counts of larceny, one count in respect of each house. The larceny related to items of personal property. For each offence of larceny the maximum penalty is imprisonment for a term not exceeding five years.
The most serious group of offences relates to the fifth house. In that house the appellant struck the woman occupant of the house across the head with her handbag, and then struck her again with a wooden chair. She suffered significant injury. He pleaded guilty to the offence of assault occasioning actual bodily harm in relation to that incident. For that offence the maximum penalty is imprisonment for a term not exceeding five years. The appellant also struck her husband with a wooden chair, and for that offence of assault the maximum penalty is imprisonment for a term not exceeding two years. The injuries done to the woman occupant of the fifth house were quite significant.
As I have already mentioned, the offences occurred over a short space of time. The appellant was arrested at about 8.30am. Most of the property was recovered.
These brief details do not fully explain the nature of the incidents. They must have been very frightening for the occupants of the houses. The occupants of the fifth house both suffered injuries, the woman occupant suffering quite a significant injury. The Judge notes in his sentencing remarks that a number of victims still suffer from emotional and psychological problems as a result of the intrusion into their homes and as a result of their confrontation with the appellant.
While it is a significant matter that all of the offending occurred in a short space of time, that cannot be allowed to obscure the serious nature of these offences. This is offending of a type which has caused great public concern of late. It is in response to that concern that Parliament has substantially increased the relevant penalties to the very heavy penalties outlined by me above.
The appellant has an appalling record. His list of offences extends over about two and a half pages in relation to the time when he was a young offender, and for almost another two pages for his adult life. The appellant is now 27 years of age, or at least was when sentenced. The offences are too numerous to catalogue. There are many offences involving unlawful entry into premises, many involving violence. The appellant has often been sent to prison, but he has continued to offend. All in all, the appellant’s record is very bad. The only saving grace is that he has not yet committed any of the most serious criminal offences.
The appellant left school at ten years of age. He began to abuse alcohol from 12 years of age and heroin when he was 14 years of age. He became addicted to heroin. He was sexually abused when 8 years of age. The Judge noted that the appellant stopped taking heroin in November 2000 but then became addicted to amphetamines. He was affected by amphetamines when he committed the offences.
The appellant pleaded guilty on the morning of trial. He expressed remorse and contrition. This led to the Judge reducing the sentence he otherwise would have imposed, as was appropriate.
The Judge referred to the need for personal deterrence. This is a very important factor in view of the appellant’s appalling record. General deterrence is also an important factor in a case like this.
It is not necessary to go through the precise process by which the Judge arrived at the end result. In brief, he imposed a sentence of two years’ six months’ imprisonment for each of the first three of the incidents involving aggravated serious criminal trespass and larceny, and a sentence of the like amount for the two assaults which occurred at the fifth house. Those sentences were cumulative, and so the four separate sentences (each of which covered two counts) led to a total of imprisonment for ten years. For the serious criminal trespass and accompanying larceny he imposed a sentence of one year six months, and for the aggravated serious criminal trespass at the fifth house and larceny he imposed a sentence of two years’ six months’ imprisonment. These last two penalties were made concurrent with the earlier penalties.
That meant that the effective head sentence remained at ten years. The Judge fixed a non-parole period of six years.
In my opinion the non-parole period was generous. For a man with the appellant’s record to be given such a relatively low non-parole period is unusual.
In relation to each of the sentences the Judge indicated that he had made a reduction on account of remorse, contrition and the plea of guilty and no criticism can be made of the amount of the reduction.
I must say that had it been up to me, I would not have approached the sentencing process in the manner in which the Judge did, but that is neither here nor there. I would have accumulated the sentences in a different manner but that is of no significance. Although minds might differ as to the process of imposing cumulative and concurrent sentences, I am not prepared to say that what the Judge did was wrong, and therefore I turn to the end result. Before doing so I add that none of the individual sentences can be regarded as excessive. Indeed, they are moderate. The issue in this appeal is the overall result.
The submission is that bearing in mind this was one course of conduct over a short period of time, the overall sentence should have been much less. The appellant submits it is a crushing sentence which should be reduced for that reason. He also submits that the sentences in relation to the first four houses broken into should have been made concurrent with the sentences in relation to the offences involving the fifth house broken into, which offences included the assault offences.
I reject that latter submission. In my view, it cannot be said that the Judge had to approach the sentencing process in that manner.
I also reject the submission that the head sentence and non-parole period are excessive. Looked at in isolation they are moderate, particularly when one bears in mind the nature of the offences, the maximum penalties and the appellant’s record.
Nor can I agree that considerations of totality called for a reduction on the basis that this is a crushing sentence for a man of 27 years of age. It is a heavy sentence, but the offences are very serious. Parliament has made it clear they must be treated as such. I refer here in particular to the offences of aggravated serious criminal trespass and serious criminal trespass, but one should by no means play down the significance of the assaults. The appellant’s record makes it impossible to make any reduction on the basis of a good record. No complaint can be made about the non-parole period in the circumstances. It was a generous reduction and makes greater allowance for prospects of rehabilitation than I would have been prepared to make.
I am satisfied that the sentence imposed was well within the permissible range. It is troubling that a man of this age should face a sentence of imprisonment for ten years, but there are situations in which the courts have no choice, having regard to the seriousness of the offending and the record of the offender, other than to impose a substantial period of imprisonment. This is one such case. For those reasons I would dismiss the appeal.
DUGGAN J: I would dismiss the appeal for the reasons given by the Chief Justice.
GRAY J: I would dismiss the appeal and have nothing to add.
DOYLE CJ: The order of the Court is that the appeal be dismissed.

[2003] SASC 53

14 February 2003