R v Roberts - [2006] SASC 25

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ROBERTS
Judgment of The Court of Criminal Appeal
(The Honourable Justice Besanko, The Honourable Justice Anderson and The Honourable Justice Layton)
3 February 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - appellant pleaded guilty to series of offences - sentenced to nine years and six months' imprisonment with non-parole period of four years and nine months - held: appeal allowed - sentence manifestly excessive - appellant re-sentenced to seven years' imprisonment with non-parole period of three years and six months.
Criminal Law Consolidation Act 1935 ss 134, 137, 170; Summary Offences Act 1953 ss 15, 41; Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Miller (2000) 76 SASR 151; R v Pierpoint [2003] SASC 331; R v E, AD [2005] SASC 332; R v Proom (2003) 85 SASR 120, considered.

R v ROBERTS
[2006] SASC 25
Court of Criminal Appeal: Besanko, Anderson and Layton JJ

BESANKO J I have had the advantage of reading the reasons for judgment of Anderson J. I agree with Anderson J that the sentences imposed by the judge were manifestly excessive, and I agree with the sentences he proposes which total a period of imprisonment of 7 years and are to commence from 2 April 2005.
With respect, I do not agree with the non-parole period proposed by Anderson J, and, in my opinion, the appropriate non-parole period is 4 years. The matters which are relevant to the determination of the head sentences are also relevant to the fixing of the non-parole period, although it is appropriate to give greater weight to the rehabilitation of the prisoner when fixing the non-parole period: R v Miller (2000) 76 SASR 151.
In this case, the appellant was guilty of serious criminal conduct on three separate occasions. Although I do not disagree with the assessment of Anderson J as to the characterisation of the offending, it remains the case that the offending was serious, with two of the offences – aggravated serious criminal trespass in a place of residence and aggravated robbery – each carrying a maximum penalty of life imprisonment. Considerations of general and personal deterrence and the need to protect the community must be kept in mind in fixing the non-parole period. On the other hand, the rehabilitation of the prisoner must also be carefully considered. In this case, it is not possible to conclude that the prospects for rehabilitation are good, and, in fact, Dr Balfour, the psychiatrist who examined the appellant, went no further than to describe the prospects of rehabilitation as “fair”. It is important to note that Dr Balfour also said that the appellant will experience relapses of his drug addiction which will place him at risk for further offending behaviour.
Having regard to those matters and the fact that the appellant’s prospects of rehabilitation have also been taken into account in determining the appropriate sentences which total a period of 7 years, in my opinion, a non-parole period of 4 years reflects an appropriate balance of the relevant factors.
The appeal should be allowed and the sentences imposed by the judge should be set aside. I agree with the sentences proposed by Anderson J. For the offences committed on 26 November 2004, one penalty of imprisonment for 1 year should be imposed, and, for the offences committed between 11 and 14 December 2004, one penalty of imprisonment for 1 year and 6 months should be imposed. For the offences committed on 2 April 2005, one penalty of imprisonment for 4 years and 6 months should be imposed. This gives a total of 7 years. I would fix a non-parole period of 4 years.
ANDERSON J
BACKGROUND
This is an appeal by leave against a sentence imposed by a District Court Judge. The appellant pleaded guilty to a series of charges relating to events that occurred over three different periods of time. The complaint made by the appellant is that:
(a)the learned sentencing Judge imposed a sentence on an incorrect factual basis;
(b)the learned sentencing Judge failed to give adequate weight to the appellant’s prospects of rehabilitation;
(c)the learned sentencing Judge referred to the principle of totality but did not give any or sufficient weight to it;
(d)the learned sentencing Judge gave undue weight to principles of deterrence and insufficient weight to factors personal to the appellant.
In relation to certain events of 26 November 2004 the appellant pleaded guilty to the offence of serious criminal trespass in a place of residence contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (“the Act”), and also to the offence of theft contrary to s 134 of the Act. In addition, he pleaded guilty to the offences of possessing or using prohibited weapons, and unlawful possession of property, namely a street sign, relating to the same series of events, contrary to ss 15(1c), (b) and 41(1) of the Summary Offences Act 1953.
He also pleaded guilty to the offences of aggravated serious criminal trespass in a place of residence, and two counts of theft between 11 and 14 December 2004 contrary to ss 170(2) and 134 of the Act.
Finally, he pleaded guilty to the offence of aggravated robbery with an offensive weapon, namely, a syringe, contrary to s 137(2) of the Act on 2 April 2005, and also to the offences of failing to comply with a bail agreement, and unlawful possession on that same day. The maximum penalties set for each of the offences are as follows:
1For aggravated serious criminal trespass in a place of residence – life imprisonment.
2For aggravated robbery – life imprisonment.
3For serious criminal trespass in a place of residence – 15 years imprisonment.
4For theft – 10 years imprisonment.
5For possessing a prohibited weapon – two years imprisonment or a fine not exceeding $10,000.
6For unlawful possession – two years imprisonment or a fine not exceeding $10,000.
7For breaching a bail agreement – two years imprisonment or a fine not exceeding $10,000.
As I have indicated, the appellant pleaded guilty to each of the matters involving the three different occasions of offending. The learned sentencing Judge allowed the appellant a discount in penalty; amounting to 25 percent because of his guilty pleas.
The Judge imposed one sentence which totalled nine years and six months imprisonment. He fixed a non-parole period of four years and nine months to take effect from the time when the appellant went into custody, namely, 2 April 2005.
THE OFFENCES
The circumstances of the offences relating to 26 November 2004 are that the appellant entered the home of a female who he knew, but with whom he was not in a relationship, and stole from her place of residence a DVD player, a TV and a hi-fi set. When he was arrested, his home was searched and certain weapons were found. The weapons included knives, nunchakus, and a steel pole, and in addition, the police found at his home a street sign.
Between 11 and 14 December the appellant broke into the same residence occupied by the same female person who was then asleep with her boyfriend, and the appellant, again, stole the same hi-fi system, and in addition, a wallet, some credit cards, and some money.
On 2 April 2005 the appellant went to an IGA grocery store on Hutt Street, and there, armed with a syringe full of a red or brownish coloured liquid, he demanded and was given money. The syringe would have had the appearance of being filled with blood.
Unfortunately the background for all of these crimes involves the serious drug addiction of the appellant. He has been drug-dependent for many years. At the time of the offences, Mr Roberts was suffering from a long-standing amphetamine addiction which commenced when he was about 17 years old. This addiction has been the main contributing factor to Mr Roberts’ divergence into criminal activity.
The appellant has been in custody since the events of 2 April, and a psychological report prepared for the purpose of sentencing indicates that he has been drug-free and attempting to rehabilitate himself since that time.
ISSUES ON APPEAL
Mr Mead, for the appellant, argued that there were three errors in the approach of the trial Judge to sentencing. The first involved a factual error in the sentencing Judge’s comments. The Judge said that the appellant had previously been given a suspended sentence, which was not correct. He had, however, previously been placed on a good behaviour bond and had completed the time prescribed on the bond without incident.
Mr Brebner QC, for the respondent, submitted that this error was no more than a slip and that there was no indication that it influenced the end result. Mr Mead referred the court to R v Pierpoint (2003) SASC 331. In my opinion that was a very different situation. The Judge in that case had sentenced for a more serious offence than the one he was dealing with and had imposed a sentence of imprisonment, whereas the maximum penalty was a fine. The error in this matter is not of that nature. Also, whilst an error such as this may in some circumstances, have potentially influenced the sentencing result such as where less serious crimes were involved or where suspension of sentence may potentially be appropriate, that is not the situation here. It is my view that, in the circumstances of this case, Mr Brebner is correct and the factual error did not influence the end result.
The second matter raised by Mr Mead was the question of the appellant’s prospects of rehabilitation. Rehabilitation in this case would involve the attempt to cure the appellant of his drug habit, and this may inevitably involve some progress interspersed with relapses from time to time.
In argument, considerable reliance was placed by Mr Mead, on the psychological report of Mr Balfour dated 25 July 2005. This part of the argument was directed to the suggestion that insufficient regard had been placed on the prospects of rehabilitation by the sentencing Judge. In particular, the appellant relied on the following passage from Mr Balfour’s report:
I asked Mr Roberts what is the probability of him re-offending and he replied “Nil. Because I’ve been off drugs of any kind. I’m a good person with good behaviour”.
With the assistance of a supervised, structured rehabilitation programme, I believe that Mr Roberts’ prognosis to cease offending is fair. He has complex mental health problems and an entrenched drug addiction. His rehabilitations will be lengthy (ie. Two to three years). Along the pathway to recovery, he will experience relapses of his drug addiction, which will place him at risk for further offending behaviour. I believe the following factors are in his favour when considering his general prognosis:
1.    His main criminogenic risk factor that brings him into conflict with the law is his drug addiction. I believe that his drug addiction represents a maladaptive coping strategy for his mental health problems. I believe that with psychiatric and psychological assistance he will be able to develop adaptive coping strategies as alternatives to drug abuse, and his propensity to offend will be reduced.
2.    As a result of the seriousness of the current offences he is more strongly motivated to rehabilitate and to overcome his drug problem. He made an abortive attempt to detoxify himself during February, 2005, when he admitted himself to the Warranilla programme.
3.    He is fortunate enough to have the ongoing support of his biological father, who is an architect, and his stepfather, who is a general practitioner. They have assisted him to attend rehabilitation programs. He has a supportive maternal grandmother who has financed his drug addiction to prevent him from offending. However, she should be counselled to spend her money accessing residential drug and alcohol rehabilitation services for Mr Roberts in the private sector.
4.    Despite having a significant drug problem, he does not have an entrenched offending history. He was 25 years old when he first came into significant conflict with the law. He has no prior convictions for violent behaviour.
5.    With the exception of his drug addiction, he does not suffer from any other psychopathology which would predispose him to offending behaviour or compound his rehabilitation.
It appears then that the prospects of rehabilitation are fair but the rehabilitation will take place over the course of two or three years, and there are likely to be relapses along the way. That of course is in the nature of rehabilitation from such a chronic problem as the appellant suffers.
The non-parole period fixed by the learned sentencing Judge is half of the head sentence and, in my view, indicates that the Judge intended to give the appellant every chance of rehabilitation. It is not clear, however, whether the appellant’s prospects of rehabilitation are reflected properly or at all in the head sentence imposed.
Mr Mead pointed to the appellant’s remorse and his understanding of the effect of his crimes upon his victims. In particular it must be emphasised, the very serious effect the aggravated robbery had on the victim. The victim was a young woman who was serving behind the counter in the supermarket, and as a result, she has suffered a loss of personal confidence and a sense of anxiety, especially at night. In respect of the other offences the impact on the victims was limited.
The third aspect argued by Mr Mead is the operation of the principle known as totality. I refer to the remarks of Doyle CJ in R v E, AD (2005) SASC 332, and in particular in paragraphs [36], [37], and [38] as follows:
The concept of totality will usually have little part to play when a sentence is imposed in exercise of the powers conferred by s 18A of the Sentencing Act. If the sentencing judge arrives at a sentence, without determining the sentence that each offence will attract separately, the judge will necessarily have regard to the total period of imprisonment that is appropriate: see R v Major (1998) 70 SASR 488. No further reduction under the totality principle would usually be called for: see R v Bennett [2005] SASC 55 at [15]-[16] Doyle CJ; R v B, RWK [2005] SASC 84; (2005) 91 SASR 200 at [16]–[17] Doyle CJ, at [24]–[25] Vanstone J. That is not to say that the principle of totality never requires consideration in such a case. Ordinarily one would not expect it to require separate consideration.
The totality principle has been stated in terms that reflect slightly different aspects. The first aspect is that when an offender is sentenced for a number of offences, the court must ensure that “the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved”: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 McHugh J. The other aspect is that sometimes, although the individual terms of imprisonment imposed in respect of each of a number of offences will be appropriate, the aggregate of all of those sentences will become so “crushing” as to call for some reduction in the aggregate: see King CJ in R v Rossi (1988) 142 LSJS 451, cited by McHugh J in Postiglione at 308. I refer also to the remarks of Kirby J on this point in Postiglione at 340-341. As these statements of the principle indicate, it is a general principle that requires the court to assess the overall criminality involved, and to do so by reference to the aggregate sentence to be imposed.
In recent times there has been at tendency for the totality principle to be invoked, almost routinely, in support of a complaint that a sentence is excessive. Ordinarily, if a judge or magistrate imposing sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.
Mr Mead analysed the appropriate balance which he submitted had not been struck between the need to deter the offender and others, as against the need to impose a sentence that avoids ruining this man’s future. In terms of the balancing exercise, it was submitted that in relation to the serious criminal trespasses, that they were not the most serious of their type. I agree with that submission to the extent that this is not a case where the perpetrator is unknown to the occupants of a house, and that the perpetrator did not use weapons or some form of disguise. The significance of this is that it is unlikely in the circumstances that the victims were actually placed in fear at the time the events occurred. To that extent it is certainly not the most serious for that type of case.
It was submitted that another important factor in the balancing exercise is that the appellant had not been previously sentenced to imprisonment, and that he had expressed remorse and contrition. He had also indicated a desire to cease using drugs. In my opinion, these matters must carry considerable weight. It was further submitted that the Judge focussed substantially on the issue of addiction. It was not submitted that the question of addiction should mitigate the seriousness of the offences, but rather that it was relevant to show that the appellant was not a professional criminal, and the circumstances of his commission of the offences would tend to indicate that that is correct. Nonetheless, he did put the victim who worked in the supermarket in a position which she regarded, quite reasonably, as very seriously threatening.
Mr Mead submitted that not sufficient account was taken of the decision in R v Proom (2003) 85 SASR 120. In particular, the remarks of Doyle CJ. It was accepted by this court at paragraph [43] that:
Addiction to drugs, when it leads to crime is not an excuse for the purposes of sentencing… Nevertheless, addiction may be a relevant circumstance…
In the end, if addiction is of any significance it is to be considered in the context of all the circumstances of the case…
In my opinion, the circumstances of this case dictate that the appellant’s addiction should be considered to the extent that his more serious criminal behaviour was a direct result of his addiction. There was no pattern of criminal behaviour established, all previous convictions related essentially to motor vehicle offences and also one instance of forging and uttering.
Mr Mead then dealt with the way in which the Judge reached the head sentence of nine and a half years. The trial Judge reached the head sentence by analysing each of the three groups of offences occurring on 26 November 2004, 11 December 2004 and 2 April 2005. Within each group, his Honour further considered each separate offence and the corresponding sentence to be imposed before reaching a cumulative total pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 for each group of offences.

In relation to the first group of offences, his Honour started with a two-year term of imprisonment, discounting that by 25 percent, and reaching a figure of 18 months imprisonment. For the other offences committed on the same date, he applied the same discount and added a further three months, making the total sentence for the events of 26 November 2004 one year and nine months.
In relation to the offences between 11 and 14 December 2004, his Honour started with a period of three years imprisonment, applied a discount of 25 percent, obtaining a figure of two years and three months imprisonment.
In relation to the offence of the aggravated robbery, his Honour started with seven years, and after applying the same discount, reached a figure of five years and three months. Each of the sentences was to be cumulative. For the additional offences on 2 April, which arose when Mr Roberts was on bail for the November and December offences, his Honour allowed a further three months imprisonment.
As indicated, that totalled in all, nine years and six months imprisonment. His Honour then said:
I must now consider whether this is a sentence such that the principle of totality should be applied – that is – is the sentence such as to be crushing? In my opinion, it is not.
It is really this question and the answer to it which, in my view, governs the outcome of this appeal.
CONCLUSIONS
As I have indicated, I do not believe that the first two series of events, serious as they are, in the circumstances in which they were committed should be regarded as being at the upper end of the scale of seriousness. I believe that they were at the lower end. There was no lasting impact on the victims. In relation to the aggravated robbery, whilst I agree that the circumstances of that offence do not fall at the upper end of seriousness, they certainly in my view, do not fall at the lower end, and at best for the appellant, they are mid-range. There is, however, something to be said for the submission that, although the circumstances of the syringe being apparently filled with blood was extremely frightening for the victim, the fact is that it was not the same as someone armed with either a loaded gun or using a knife, or a syringe actually filled with blood.
Mr Brebner submitted that it was relevant for the sentencing Judge to consider that there had been previous decisions to grant leniency to this man which had given him opportunities to rehabilitate himself, and which he did not take.
In my opinion, although the sentencing Judge properly took into account the prospects of rehabilitation in his fixing of the non-parole period, he did not do that in relation to the head sentence. It is also my view, given that this is the first period of imprisonment ordered against the appellant, that stepping back to look at the whole series of events in the way in which I have characterised them, nine years and six months is excessive.
Using the same methodology as the sentencing Judge, for the first group of offences, after a reduction for the guilty plea, I would impose a sentence of one year. For the second group of offences I would impose a sentence of one year and six months. Finally, for the last group of offences I would impose a sentence of four years and six months. I would impose an overall sentence of seven years.
It is my view that the factors which are most influential, in favour of the appellant, are the appellant’s record, his contrition and remorse, the fact that this was the first time the appellant had been sentenced to imprisonment, and finally and most importantly, the prospects of rehabilitation from a drug addiction which was the main reason for the commission of the offences. As against that are the matters which I have previously referred to relating to the circumstances of the aggravated robbery and the effect on the victim which go against the appellant. However, I have reached the conclusion that for a first sentence of imprisonment, in conjunction with the other mitigating factors, that the sentence is crushing.
I consider that the appeal should be allowed. I would substitute for the head sentence a period of seven years, and I would reduce the non-parole period to three years and six months.
LAYTON J Having had the advantage of reading the draft reasons for decision of Anderson J, I agree that the appeal should be allowed for the reasons which he has given, and I agree with his proposed orders.