R v Quach No. Sccrm-03-320

R v QUACH
[2004] SASC 87
Full Court: Perry, Bleby and Sulan JJ

PERRY J: I agree with the order proposed by Justice Bleby and with his reasons.
BLEBY J: This is an appeal by leave against the sentence imposed upon the appellant following his plea of guilty in the District Court to five armed robberies, one attempted armed robbery and one unlawful wounding.
All of the offences occurred between 2 and 9 October 2002. The offending began in the early evening of 2 October 2002 when the appellant approached the attendant at an adult bookshop at Holden Hill, brandishing a knife. He grabbed the attendant by the throat with his other hand, stole his mobile telephone and took $320 from the till.
He repeated the offence, this time in company with another offender, whom I will call V, the next evening, when he confronted the same attendant, produced a knife and stole $200.
Two days later, on 6 October he entered the shop again in company with V and confronted the owner with a knife, but made off when he was challenged. That was the attempted armed robbery.
Later the same evening he and V went to an adult bookshop in Broadview, where he threatened the female attendant with a knife and stole $200 from the till.
Again in company with V, two days later, the appellant threatened a female attendant at another adult bookshop in Parafield Gardens and stole her mobile telephone and $110 from the till.
The last offence involved an elderly lady, who on the day after the Parafield Gardens robbery, was accosted in the street by the appellant who demanded her handbag. She resisted when the appellant attempted to pull the strap of the handbag, and the appellant then cut the victim’s left hand, whereupon she released the bag and called for help. V was present on that occasion but did not participate in the robbery or the wounding.
The appellant was driven away in V’s car, but was followed, and police came on the scene and arrested the appellant and V.
On that occasion, the appellant stole $230. At the same time he inflicted a very serious injury to the victim’s left hand, which was her dominant hand. Four tendons were severed and joints fractured and, despite surgery, she suffers a permanent restriction in the use of the hand.
V, the appellant’s co-offender, was just under 18 at the time of these offences. He was charged with a number of offences in the Youth Court but was committed for trial, and for sentence on some counts, to the District Court. He eventually pleaded guilty in the District Court to 4 counts of armed robbery, one count of attempted armed robbery and one count of assisting an offender.
As in the case of the appellant, V’s first armed robbery was committed alone but was similar in nature to that committed by the appellant. The three remaining counts of armed robbery and the one count of attempted armed robbery to which V pleaded guilty were those committed in company with the appellant, other than the offences involving the elderly lady on 9 October 2002. In respect of that occasion the appellant pleaded guilty to armed robbery and unlawful wounding. On the amended information V was only charged with and pleaded guilty to assisting an offender in respect of those offences committed by the appellant.
V was sentenced on the same day as the appellant by the same sentencing Judge. His sentence was the subject of a successful appeal to this Court: R v QTV [2003] SASC 424. The outcome of that appeal turned solely on the fact that, at all material times, V was a youth for the purpose of sentencing. However, I shall return in due course to the approach taken by the sentencing Judge in his sentencing of V.
The appellant is a young man. He had just turned 19 when the offences were committed. He had a minor record as a juvenile, which included two offences of larceny committed in 2001 and 2002. At the time he was sentenced, which was in September 2003, he was a month off 20 years of age.
The appellant left home at the age of 16 and fell into bad company, as a result of which he was introduced to alcohol and drugs, more particularly heroin. Although he returned for a short period of time to live with his parents, when he stopped using heroin and undertook work in a family bakery for about nine months, he relapsed into heroin usage and struck up a friendship with the other man V. V was also a heroin user.
In their submissions before the sentencing Judge, the appellant and V had both claimed that they were assisting the other to pay that other’s heroin debts. Nevertheless, the sentencing Judge held that both were willing participants in the offending, and there can be no doubt that this was so.
The sentencing Judge imposed on the appellant a head sentence of 14 years, against which he fixed a non-parole period of 9 years, the sentence to commence from the date upon which the appellant was taken into custody, namely 9 October 2002.
The process by which the sentencing Judge fixed the appellant’s sentence appears from the following passages in his remarks on sentence.
Early in his sentencing remarks the sentencing Judge said:
“You have entered your pleas of guilty at the earliest opportunity and are entitled to a discount to sentence on that account. Whilst that discount may be affected by the strength of the Crown case which you face, I note that you made full and complete admissions immediately you were spoken to by the police, in relation to each offence on 9 October 2002. The police were then well advanced in their investigation of these offences, but I accept that you, by your early and complete admissions, have saved some cost of investigation in addition to the cost of a trial.
I shall reflect these matters in a reduction of penalty by 20 per cent, on account of your early plea, and a further 5 per cent because of this saving of investigative time and effort.
I accept that you are contrite and remorseful for your actions, and I shall have regard to that in fixing the appropriate penalty.”
Towards the end of his remarks the Judge said:
“It is well known that targets such as the shops you chose to visit, are soft targets, with little or no defence to a determined armed robber. The sentence to be imposed must indicate to the community at large, that such behaviour is not to be tolerated and will attract a severe sanction.
As the need for money has underpinned all of these offences, I shall deal with them pursuant to s 18A of the Criminal Law (Sentencing) Act and impose one sentence. It is not possible to proceed by way of a mathematical formula.
Were it not for your immediate admissions and consequential assistance to the police; your youth, and having regard to your antecedents, I would have imposed a sentence of 20 years imprisonment for these offences, all of which were committed within a week. I must then allow a discount for your pleas of guilty. I would fix a sentence of 16 years.
I must then stand back and again look at the length of that sentence, particularly in light of your age and the need to balance deterrence with prospects of rehabilitation. It is impossible to act on the assumption that there is no realistic likelihood of rehabilitation when considering the appropriate sentence for one so young.
On that basis I reduce the head sentence to 14 years. I fix a non-parole period of nine years.
Suspension of that sentence is not an option.”
The process thus adopted by the sentencing Judge was to fix a notional starting point reflecting the gravity of the offences and factors relevant to retribution and general deterrence. He then discounted that on account of the appellant’s plea. I shall return to the question of the extent of that discount in a moment. He then arrived at what I will call an interim notional penalty, from which he then made a further deduction on account of the appellant’s youth and prospects of rehabilitation and his review of the sentence generally, in order to arrive at the head sentence of 14 years imprisonment.
That process of discounting was quite appropriate in sentencing the appellant, he being aged 19 at the time of the offences. As can be seen from R v QTV (supra), sentencing of a person under the age of 18 must attract very different considerations, as it did in the case of V, even though V played a significant part in all but one of the offences of which the appellant was convicted. However, that does not mean that a person aged 19 should not, as an adult, attract special consideration that would not be applicable to an older and more mature offender. The sentencing Judge therefore properly engaged in the further discounting process from the interim notional penalty in order to arrive at an actual head sentence.
I turn to the notional starting point of 20 years. In the sentencing Judge’s mind, that was a notional penalty appropriate to the nature and seriousness of the offending only, before taking into account consideration of factors personal to the appellant. The offences were very serious. They occurred in a relatively short space of time. All but one was committed in company. The targets were all very vulnerable. They all involved violence or threats of violence. The offences had significant impacts on the victims, especially the last one. Five of the offences attracted a maximum penalty of life imprisonment. The attempted armed robbery attracted a maximum penalty of 12 years imprisonment, and the unlawful wounding a maximum of 5 years imprisonment. The unlawful wounding offence in this case must be placed at the higher end of the scale of seriousness for that offence. General and personal deterrence must play a significant part in the sentence to be imposed.
In my opinion, the sentencing Judge’s starting point of 20 years was appropriate for a single sentence under s18A of the Criminal Law (Sentencing) Act (1988). It also reflected his Honour’s view of the relative seriousness of the offending of the appellant and V. The Judge adopted a similar discounting process for V, a process which this Court held was inappropriate in that case because of the fact that V was under 18. In V’s case the Judge’s notional starting point was 17 years imprisonment. That starting point, if V were an adult, was not questioned by the Full Court in R v QTV. Allowing for the similarity in the two separate armed robbery offences which the appellant and V each committed by themselves, it was appropriate that the appellant’s notional starting point should be higher than that attributed to V, if V had been an adult, taking into account their respective roles in the series of offending and, in particular, the more serious charges against the appellant in respect of the offences committed on 9 October 2002. I would not disturb the sentencing Judge’s notional starting point of 20 years.
The first reduction applied by the Judge related to the appellant’s plea of guilty. At this point, the process adopted by the sentencing Judge at the end of his sentencing remarks did not reflect what he had said he would do at the outset. It was important that the sentencing Judge identify the appropriate allowance for an early plea: R v Harris and Simmonds (1992) 59 SASR 300 at 302. One may question the need to dissect this in as much detail as the sentencing Judge did at the beginning of his sentencing remarks. Indeed, that may have led him into inadvertent error later in his remarks. In fact, the Judge seems to have allowed what was a 20% discount on the notional starting point of 20 years, but omitted to take into account the additional 5% he had earlier considered appropriate on account of the saving of investigation time and effort. In the light of the Judge’s observations made at the commencement of his sentencing remarks, that can give rise to a justifiable sentence of grievance.
In all the circumstances, notwithstanding the apparent strength of the prosecution case at the time of the appellant’s arrest, I consider that a discount of 25% was nevertheless appropriate, and that the interim notional sentence fixed by the sentencing Judge should have been 15 years rather than 16 years. That would appear to be consistent with what the Judge actually intended.
The further reduction allowed by the Judge on account of his overall review of the sentence on account of the appellant’s age and of the need to balance deterrence with prospects of rehabilitation was a period of 2 years. I have already said that it was proper to make a further allowance on this account. The question is whether that allowance was sufficient. There was no doubt a reasonable prospect of rehabilitation, given the appellant’s youth, expressions of contrition and the support he apparently enjoyed from his family. A similar position pertained with respect to V. There was, nevertheless, an attempt by each to blame the other to some extent for his involvement. Those attempts remained unresolved at the time of sentencing submissions. That has the effect of mitigating, to some extent, the expressions of contrition and remorse.
In all the circumstances, while opinions will differ, I consider that the sentencing Judge’s allowance of 2 years was within the range of the discretion open to the Judge.
It follows that the only error that can be identified in relation to the fixing of the head sentence, is that in relation to the first process of discounting, where it appears that the sentencing Judge intended that the interim notional sentence should be 15 rather that 16 years. That would result in a final head sentence of 13 years rather than 14 years. That is very different from the 9 years head sentence fixed by this court in the case of V. However, as appears from the reasons in that case, a very different approach was necessary, given the different statutory requirements in sentencing V.
Leaving that consideration aside, it seems to me that a head sentence of 13 years properly reflects all the considerations relevant to the sentencing of the appellant, and I would allow the appeal for the purpose of making that adjustment.
It then becomes necessary to reconsider the non-parole period. Here again, it is appropriate to take into account the appellant’s relative youth and his past criminal history. Prospects and encouragement of rehabilitation are still important at age 19 and 20, notwithstanding the mandatory shift to principles of adult sentencing at the age of 18. The sentencing Judge did not advert specifically to this when fixing the non-parole period. The appellant’s prospects of rehabilitation in the circumstances I have described are reasonably good. A substantial period of supervision in the community is appropriate, given his relative youth. That factor should be reflected in the sentence to a greater extent than might be the case for an older offender. I would fix a non-parole period of six years and six months.
I would therefore allow the appeal. I would set aside the sentence imposed by the sentencing Judge. I would substitute for that sentence a sentence of imprisonment of 13 years. I would fix a non-parole period of 6 years and 6 months, the sentence and non-parole period to commence as from 9 October 2002, being the date when the appellant was taken into custody.
SULAN J: I agree also.

[2004] SASC 87

15 March 2004