R v Pretty No. Sccrm-00-78

[2000] SASC 181

R v PRETTY
[2000] SASC 181

Court of Criminal Appeal: Olsson, Wicks and Gray JJ

1................ OLSSON J:...... I have had the benefit of reading, in draft, the reasons for decision published by Gray J.  I agree with his conclusions and that the appeal must be dismissed.

2................ WICKS J......................... I agree that the appeal be dismissed for the reasons given by Gray J.  I have nothing to add.

3................ GRAY J:........... ............. Brian Kevin Pretty pleaded guilty to two counts of robbery with violence.  He was sentenced to imprisonment for a period of eight years with a non-parole period of four years.  He has appealed against the sentence raising two matters of complaint.  First, that the sentence including the non-parole period, was manifestly excessive and secondly, that there was an unjustifiable disparity between the sentence imposed upon the appellant, as against the sentence imposed on his co-accused, Cowen.

1. Shortly before midnight on 9 August, 1999 the appellant with Cowen hailed a taxi in Hindley Street, Adelaide.  They asked to be taken to a hotel on Prospect Road.   When the taxi reached Prospect Road, they asked the driver, a Mr Burton,  to turn into several side streets and then asked him to stop.  Mr Burton was immediately on the alert.  He thought this strange as they had indicated that they wished to go to a hotel. 

2. As Mr Burton was braking to pull over, the appellant put a cord around his neck from behind, in the fashion of a garotte, and demanded his wallet and money.  Mr Burton struggled and was able to stop the cord being tightened around his neck.  Fingers were then placed in his nostrils and his head was pulled back sharply.  He attempted to accelerate and brake quickly to dislodge his assailant.  As a result his vehicle collided with a stobie pole.  As he called for assistance, Cowen hit him about the head with the coin dispenser from the taxi.

3. Cowen immediately ran away but the appellant  stayed on the road for a short time.  Cowen returned and together they made their escape.  Mr Burton was taken to hospital by ambulance and received treatment. 

4. Shortly thereafter, in the early hours of Tuesday 10 August 1999, the appellant and Cowen, still in the vicinity of Prospect Road, approached a Mr Selby, who was walking in a northerly direction on Prospect Road on the western footpath. The appellant struck Mr Selby a heavy blow to his head and back and Mr Selby fell to the ground.  Mr Selby gave his wallet to Cowen on demand.  Cowen also took coins, a lighter and a pen.  They made their escape. 

5. The appellant and Cowen were apprehended by the police, in the vicinity, some 30 minutes later.  When questioned, the appellant denied any involvement and gave a false name.  He did not cooperate with the police in regard to their enquiries or investigations. 

6. The learned sentencing Judge had the benefit of victim impact statements from Mr Burton and Mr Selby.  The crime has had a significant effect on Mr Burton.  He received immediate treatment at hospital for his physical injuries, which included facial bruising and neck strain.  His right eye was blackened, his left eye bruised.  He was cut about the face above the right eye and there were lacerations to his scalp.  He had bruising to a knee.  He had follow-up treatment with his general practitioner and has had psychological treatment for post traumatic stress.  Physiotherapy has been necessary.  At the time of making his victim impact statement, he was receiving ongoing psychological treatment and was suffering depression, fear and embarrassment.  He suffers disturbed sleep, often cut short by nightmares.  His psychological symptoms have caused stress between him and his partner. The incident has affected his family. He suffered damage to his glasses, the loss of the coin holder, the loss of monies and damage to his motor vehicle.  He was off work for some two months.

7. Mr Selby suffered minor physical injuries with the only serious sequelae being possible hearing loss.  In that regard, tests are ongoing.  He also fears walking at night and suffers a general loss of confidence. 

8. Robbery with violence is a serious crime.  The attack on Mr Burton the taxi-driver was undertaken in terrifying circumstances.  The placing of a cord around his throat from behind was designed to cause terror, making this particular crime very callous.  Following the collision with the stobie pole further assault was committed on Mr Burton by Cowen as part of the joint enterprise.   The attack on Mr Selby involved a heavy blow to his head and back.  It was fortunate that serious physical injury was not inflicted.  Having knocked Mr Selby to the ground, Cowen, in the presence of the appellant, demanded his wallet and other items of value and they then made their escape leaving their victim on the ground.  These are undoubtedly very serious offences. 

9. The appellant is aged 30.  He has a long record of prior offending, commencing in 1983.  He has many convictions for burglary and other offences involving dishonesty, as well as offences of assault.  He has been sentenced to imprisonment on many occasions and has re-offended often;  on some occasions whilst on parole.  Of particular significance, are the previous offences of aggravated armed robbery, attempted armed robbery and burglary, for which he was sentenced to four years imprisonment in 1996.  It was whilst on parole for these offences that the crimes subject to this appeal were committed .

10. The appellant was subjected to physical abuse by his de facto father.  He was made a ward of the State by the age of 13 and spent his teenage years in various foster homes. He performed poorly at school.  He is of low average intelligence with a history of learning difficulties and poor literacy and numeracy skills.  He has a long history of drug and alcohol abuse.  It was said that alcohol and drug abuse led to the offences on this occasion.  Although these matters may explain the conduct the occurred, they do not offer any real excuse -R v Payne[1]. 

    [1] (1994) 177 LSJS 345

11. It is against this background that the appellant had to be sentenced.  The learned sentencing Judge correctly took a very serious view of the offences.  They were crimes which outrage the community because they undermine the essential security which any person is entitled to feel when walking the streets or going about their employment.  Taxi drivers provide an important service to the public.  They are required to drive throughout the day and night and to carry money in their vehicles.  As a result they are vulnerable and attractive targets to people minded to commit a robbery.  Members of the general public are entitled to walk the streets at night without fear of being assaulted and robbed.  Deterrence has an important part to play in the fixing of an appropriate penalty.  The learned sentencing Judge had regard to the plea of guilty and accepted that the appellant was remorseful.  He took into account the contents of the psychological report and the submissions made. 

12. The learned sentencing Judge did not disclose the extent of the reduction for the plea of guilty that he undoubtedly allowed. It has been said repeatedly by this Court that sentencing judges should do so - R v Wall; R v Richards[2].

    [2] [2000] SASC 177 delivered 27.6.00

13. It was submitted on behalf of the appellant, that the sentence imposed was outside the range of sentences for serious offences of this nature.  The course of conduct engaged in by the appellant involved two serious crimes of robbery with violence. There were circumstances of extreme aggravation in the attack on Mr Burton.  The appellant has a long record and was on parole following a conviction and sentence for armed robbery when these crimes occurred.  Assuming a reduction for the guilty plea of 20 - 25 per cent, the postulated starting  of 10 - 10 and a half years cannot, in my view be said to be manifestly excessive.  No error in the exercise of the sentencing discretion by the learned sentencing Judge in fixing the head sentences has been shown.

14. Complaint is made that the non parole period is manifestly excessive. The non-parole period has been set at only 50 per cent of the head sentence.  In the circumstances I consider this to be generous.  The non-parole period was well within the sentencing discretion of the learned sentencing Judge and could not be said on any view to be manifestly excessive. 

15. The remaining ground of appeal relates to a suggested disparity with the sentence imposed on the co-offender Cowen.  The learned sentencing Judge differentiated between the two offenders because of their respective records.  The sentence imposed on Cowen was imprisonment for seven years and a non parole period of three years and six months. 

16. It was submitted that the learned sentencing Judge did not consider the disadvantages suffered by the appellant in his upbringing.  I do not consider that this criticism can be made out.  Express reference was made to the appellant's personal circumstances.  In my view these matters were not overlooked.

17. In my view, Cowen's circumstances did call for a lesser sentence than the appellants and it cannot be said that the learned sentencing Judge erred in imposing the sentence that he did. A significant difference between the two was that the appellant had previous convictions for the offences of aggravated armed robbery and attempted armed robbery being offences that His Honour saw as akin to the current offences. Cowen did not have such a record - R v Cox[3] and Postiglione v R[4]. A matter of particular aggravation was that the appellant was on parole for these offences when he committed the crimes the subject of this appeal.

    [3] (1995-96) SASR 152 at 159

    [4] (1997) 145 ALR 408

18. I would dismiss the appeal.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

1. (1994) 177 LSJS 345

2. Judgment no. [2000] SASC 177 delivered 27.6.00

3. (1995-96) 66 SASR 152 at 159

4. (1997) 145 ALR 408