R v Randall-Smith and Davi

Case [2008] SASC 99

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v RANDALL-SMITH & DAVI

[2008] SASC 99

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Layton)

23 April 2008

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - PLEA OF GUILTY, CONTRITION AND CO-OPERATION

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - TOTALITY

DPP application for permission to appeal and appeal against sentence – the respondents (co-defendants) pleaded guilty to six counts of aggravated robbery, one count of attempted robbery and seven counts of using a motor vehicle without consent – offences occurred in context of multiple robberies of suburban banks – co-defendants aged 19 and 21 at time of offending – each respondent sentenced in respect of all offending pursuant to section 18A Criminal Law (Sentencing) Act 1988 (SA) – 16 years’ imprisonment head sentence and 8 years’ non-parole period imposed – when calculating sentences, sentencing judge imposed overall notional sentence of 43 years’ imprisonment and then made reductions for co-defendants’ early guilty pleas, remorse and contrition, cooperation with police and in purported application of totality principle – Crown submitted that sentences were “manifestly inadequate” and shocked public conscience – consideration of principles governing Crown appeals – consideration of sentencing principles – consideration of circumstances of offending, co-defendants’ personal antecedents, matters of mitigation, rehabilitation and reformation – whether sentencing process involved error – whether sentences “manifestly inadequate”.

Held: (Gray and Layton JJ): Permission to appeal refused – sentencing judge erred, however, this alone did not justifying the re-sentencing: section 353(4) Criminal Law Consolidation Act – sentences imposed were appropriate in all circumstances.

(Doyle CJ):  Permission to appeal granted – appeal allowed – sentences imposed manifestly inadequate – sentence imposed should be set aside – head sentence of 20 years’ imprisonment and non-parole period of 10 years should be imposed for each defendant.

Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A; Criminal Law Consolidation Act 1935 (SA) s 352(1)(a)(iii), s 353(4), referred to.
R v Nemer (2003) 87 SASR 168; Wong v The Queen (2001) 207 CLR 584; Markarian v The Queen (2005) 228 CLR 357; R v Symonds [1999] SASC 217; R v Jason (2002) 36 MVR 479; R v Elliot (2001) 121 A Crim R 254; R v Liddy (No 2) (2002) 84 SASR 231; R v P (2003) 87 SASR 287; R v Gibbs (2004) 89 SASR 30; R v BRWK (2005) 91 SASR 2000; R v Nylander (2003) 228 LSJS 24; Cameron v The Queen (2002) 209 CLR 339; R v…

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R v Randall-Smith and Davi [2008] SASC 99
Case
[2008] SASC 99
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions sought permission to appeal the sentences imposed on James William Lawrence Randall-Smith and Andrew Dominic Davi, who had pleaded guilty to multiple counts of aggravated robbery, attempted robbery, and using a motor vehicle without consent. The defendants were aged 19 and 21 at the time of the offences, which occurred over an eight-month period and involved the theft of over $105,000 from suburban banks. Each defendant was sentenced to 16 years' imprisonment with an eight-year non-parole period, taking into account their early guilty pleas, remorse, and cooperation with the police. The Crown argued that the sentences were "manifestly inadequate" and contrary to the public interest. The appeal raised issues concerning the principles governing Crown appeals, the appropriate application of the totality principle, and whether the sentences were "manifestly inadequate."

The Court considered the principles guiding Crown appeals and the sentencing process, including the importance of a plea of guilty, contrition, remorse, and cooperation with authorities as mitigating factors. The Court noted that while the sentencing judge had erred, this alone did not justify re-sentencing. The Crown's argument that the sentences were "manifestly inadequate" was rejected, as the Court found that the imposed sentences were appropriate given the circumstances, including the defendants' youth, prospects of rehabilitation, and the totality principle. The Court granted the appeal, setting aside the original sentences and imposing a head sentence of 20 years' imprisonment with a non-parole period of 10 years for each defendant.

In conclusion, the Court granted permission to appeal and allowed the appeal, setting aside the original sentences. Each defendant was re-sentenced to 20 years' imprisonment with a non-parole period of 10 years, effective from the date of their initial custody. The Court also imposed a three-year disqualification from holding or obtaining a driver’s licence, commencing from the day of their release from prison. The re-imposed sentences reflected the seriousness of the offences, the need for deterrence, and the principles of sentencing, including the totality principle and the mitigating factors presented.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Like the Judge, I consider that there is a sound basis for fixing a relatively low non-parole period. The mitigating circumstances to which I have already referred justify doing so, and in particular the good prospects of reform and rehabilitation support this approach. In each case I would fix a non-parole period of 10 years.Conclusion For those reasons I would grant permission to appeal. I would allow the appeal. I would set aside the sentences imposed by the District Court. I would sentence each of the respondents to a single sentence of imprisonment, exercising the power conferred by s 18A of the Sentencing Act, the sentence being 20 years’ imprisonment. I would fix a non-parole period of 10 years in relation to that head sentence. I would order that each of the respondents be disqualified from holding or obtaining a driver’s licence for three years. That period of disqualification should commence from the day on which the relevant respondent is released from prison. I would direct that the head sentence and non-parole period in each case commence on the day on which the respondents were taken into custody, 24 August 2006.GRAY and LAYTON JJIntroduction The Director of Public Prosecutions (‘the Director’) seeks permission to appeal with respect to sentences imposed on two young men. The Director submitted that the sentences were so manifestly inadequate that they shocked the public conscience and that errors of the sentencing process had led to the manifest inadequacy. James William Lawrence Randall-Smith and Andrew Dominic Davi, the two defendants on appeal, each pleaded guilty in the District Court to six offences of aggravated robbery and an offence of attempted robbery. Both also pleaded guilty to seven offences of driving or using a motor vehicle without consent. The sentencing Judge imposed on each defendant in respect of all offending the one term of imprisonment of 16 years. A non-parole period of eight years was fixed in each case. The non-parole period commenced on 24 August 2006 when the defendants were first taken into custody. A licence disqualification for three years was also imposed, to commence after release from prison. The defendants were respectively aged 19 and 21 at the time of the first offending. They are now aged 22 and 23. The defendants committed the offences over an eight month period, from December 2005 to August 2006. Each offence involved a suburban bank and the offences of aggravated robbery involved the taking of a total sum in excess of $105,000. Each offence was premeditated and planned. Each followed a similar pattern. The Judge addressed the circumstances of the offending; the impact of the crimes on the victims and the wider community; the antecedents of the defendants including the substance of the psychological and psychiatric reports tendered concerning their immaturity and the reasons for their offending; the pleas of guilty, contrition, remorse; and the defendants’ cooperation with the authorities. There was no challenge to the Judge’s outline of these matters on the hearing of these applications. Accordingly, it is convenient to extract relevant observations from the Judge’s sentencing remarks dealing with the above matters.

Ratio Decidendi

Legal Principle Established

Any substantial increase in the individual sentences as suggested by the Director would highlight the problem identified in Nylander – the fixing of a starting point that would approach the life expectancy of the defendants. Reduction for Pleas, Contrition, Remorse and Cooperation with the Investigating Authorities In Cameron,[11] the High Court addressed the approach to be taken to mitigation in relation to pleas of guilty. Gaudron, Gummow and Callinan JJ, when discussing the provisions of the Western Australian Sentencing Act, observed:[12]The Sentencing Act, which sets out sentencing principles applicable to all persons convicted of an offence, specifies, in s 8, mitigating factors to be taken into account on sentence. One such factor is that the offender pleaded guilty. By s 8(2) it is provided that “the earlier in proceedings that [the guilty plea] is made, or indication is given that it will be made, the greater the mitigation”. Provision is also made in s 7 with respect to aggravating factors. The fact that the offender pleaded not guilty is expressly excluded from those aggravating factors by s 7(2)(a) of the Sentencing Act. It was suggested for the respondent in this Court that the full reduction for a “fast-track” plea of guilty is only available where the person concerned has pleaded guilty in circumstances relieving the prosecuting authorities of the necessity to present evidence or file statements. There would be force in that suggestion if s 8(2) of the Sentencing Act were to be read in isolation from s 7(2)(a) which gives effect to the common law rule that a person should not be penalised for exercising the right to trial. So, too, there would be force in the suggestion if the rationale for allowing a plea to be taken into account in mitigation were, to any extent, based on the objective consideration that the plea has resulted in the saving of court and prosecution time. Once it is appreciated that s 8(2) of the Sentencing Act is to be reconciled with s 7(2)(a), which gives effect to the common law requirement that an offender not be penalised for pleading not guilty, s 8(2) must be read as allowing that a plea of guilty may be taken into account in mitigation for the reason that a guilty plea evidences a willingness to facilitate the course of justice and not simply because the plea saves the time and expense of those involved in the administration of criminal justice. That being so, the relevant question is not simply when the plea was entered but, as was accepted by the Court of Criminal Appeal in this matter, whether it was possible to enter a plea at an earlier time.[11] Cameron v The Queen (2002) 209 CLR 339.[12] Cameron v The Queen (2002) 209 CLR 339 at [17]-[19] (footnotes omitted). Kirby J reviewed relevant sentencing principles as follows:[13]The main features of the public interest, relevant to the discount for a plea of guilty, are “purely utilitarian”. They include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconvenience caused, to any jurors summoned to perform jury service. Even a plea at a late stage, indeed even one offered on the day of trial or during a trial, may, to some extent, involve savings of all these kinds. Given that under our criminal justice system it is the right of the accused to put the State to the proof of the crime charged; given that by pleading guilty the accused surrenders any chance of being acquitted, even undeservedly; and given some empirical evidence that sentences following contested trials are not always substantially different from sentences upon a plea, it is in the public interest to facilitate pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a real contest about guilt. Doing this helps ease the congestion in the courts that delay the hearing of such trials as must be held. It also encourages the clear-up rate for crime and so vindicates public confidence in the processes established to protect the community and uphold its laws. A plea of guilty may also help the victims of crime to put their experience behind them; to receive vindication and support from their families and friends and possibly assistance from the community for injuries they have suffered. Especially in cases of homicide and sexual offences, a plea of guilty may spare the victim or the victim’s family and friends the ordeal of having to give evidence. All of the foregoing are reasons why it is normally in the public interest to encourage a plea of guilty to a criminal charge whilst recognising, in its “full strength”, the rule that the accused is entitled to plead not guilty, to put the prosecution to the proof and cannot be punished more severely for having exercised these rights. The considerations that I have mentioned are not separate categories, or sub-rules, of the applicable principle. They are merely illustrations of aspects of the public interest to which the law of sentencing pays regard following a plea of guilty.[13] Cameron v The Queen (2002) 209 CLR 339 at [66]-[68] (footnotes omitted).