R v ROBINSON - [2007] SASC 105

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ROBINSON
[2007] SASC 105
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice Kelly)
27 March 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Plea of guilty to four armed robberies committed in company with a minor - previous good character - good prospects for rehabilitation - whether sentence of 15 years imprisonment with a non-parole period of 10 years manifestly excessive. Held: appeal dismissed.
R v Knight (1981) 26 SASR 573; R v Place (2002) 81 SASR 395; R v Dorning (1981) 27 SASR 481; R v Creed (1985) 37 SASR 566; R v Power [2003] SASC 288, applied.

R v ROBINSON
[2007] SASC 105
Court of Criminal Appeal
Coram: Vanstone, Anderson and Kelly JJ
VANSTONE J:
Introduction

This is an appeal against a sentence imposed in the District Court after pleas of guilty to count 1, armed robbery and counts 2 to 4, three offences of aggravated robbery. The learned sentencing judge imposed a single head sentence of fifteen years imprisonment with a non-parole period of ten years. The only ground of appeal is that the sentence, and in particular the non-parole period, is manifestly excessive.
Background
The four offences were committed within a period of about three and a half months starting while the appellant was 32 years of age. All were committed in company with a 16 year old boy and involved the use of a shotgun to threaten the victims. On each occasion a different business premises was targeted and staff were forced to give cash to the offenders.
Count 1 was committed during the day of 1 July 2003 at a service station at Newton, where a male employee was working alone. The appellant and his co-offender forced the employee to give them about $400 from the cash register and took packets of cigarettes before running away.
Count 2 was committed on the evening of 4 September 2003 at a video shop at Campbelltown. The appellant and his co-offender made customers lie on the floor and robbed a female working behind the counter of approximately $125.
On the next afternoon, they went to an adult bookshop on Goodwood Road. They robbed the proprietor of cash from the till, and of about $2,000 that was on the counter, ready for banking.
The fourth offence occurred in the afternoon of 15 October 2003 at a bookshop in Beulah Park. While the appellant waited outside in a car, his co-offender went into the shop with the gun, ordered a female customer to lie on the floor and robbed the shop owner of about $300.
Between the first count and the subsequent three counts the legislation relating to these offences was amended. This resulted in the different description of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v ROBINSON

Details

AGLC: R v ROBINSON [2007] SASC 105
Case: [2007] SASC 105
Decision Date: 27 March 2007

CaseChat Overview and Summary

In the matter of R v ROBINSON, the appellant was convicted in the District Court of one count of armed robbery and three counts of aggravated robbery, all committed in company with a minor and involving the use of a shotgun to threaten the victims. The appellant appealed against the sentence imposed, which was 15 years imprisonment with a non-parole period of 10 years, arguing that the non-parole period was manifestly excessive. The appeal was heard by the Supreme Court of South Australia, which had to determine whether the sentence was manifestly excessive.

The legal issue at hand was whether the sentence imposed by the District Court was manifestly excessive, particularly the non-parole period of 10 years. The appellant's counsel submitted that the sentencing judge did not give sufficient weight to the appellant's troubled upbringing, lack of prior convictions, ability to gain and maintain employment, overcoming heroin addiction, and the support from family and friends. The court had to weigh these factors against the seriousness of the crimes committed, which involved the use of a shotgun and the targeting of different business premises over a period of three and a half months.

The Supreme Court held that while there was good reason to hope that the appellant would resume a law-abiding life upon his release, the sentence imposed by the District Court was not manifestly excessive. The sentencing judge had considered the personal factors put forward by the appellant's counsel but found that even giving them full weight, a non-parole period of 10 years did not represent too great a proportion of the head sentence. The court concluded that the sentence as a whole was moderate, and therefore dismissed the appeal.

The Supreme Court's decision was unanimous, with all judges agreeing to dismiss the appeal and adopting the reasons given by Vanstone J. No further orders were made.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against a sentence imposed in the District Court after pleas of guilty to count 1, armed robbery and counts 2 to 4, three offences of aggravated robbery. The learned sentencing judge imposed a single head sentence of fifteen years imprisonment with a non-parole period of ten years. The only ground of appeal is that the sentence, and in particular the non-parole period, is manifestly excessive.Background The four offences were committed within a period of about three and a half months starting while the appellant was 32 years of age. All were committed in company with a 16 year old boy and involved the use of a shotgun to threaten the victims. On each occasion a different business premises was targeted and staff were forced to give cash to the offenders. Count 1 was committed during the day of 1 July 2003 at a service station at Newton, where a male employee was working alone. The appellant and his co-offender forced the employee to give them about $400 from the cash register and took packets of cigarettes before running away. Count 2 was committed on the evening of 4 September 2003 at a video shop at Campbelltown. The appellant and his co-offender made customers lie on the floor and robbed a female working behind the counter of approximately $125. On the next afternoon, they went to an adult bookshop on Goodwood Road. They robbed the proprietor of cash from the till, and of about $2,000 that was on the counter, ready for banking. The fourth offence occurred in the afternoon of 15 October 2003 at a bookshop in Beulah Park. While the appellant waited outside in a car, his co-offender went into the shop with the gun, ordered a female customer to lie on the floor and robbed the shop owner of about $300. Between the first count and the subsequent three counts the legislation relating to these offences was amended. This resulted in the different description of the offences as “armed” and “aggravated” robbery. The maximum penalty of life imprisonment did not change. Prior to this conduct the only offences the appellant had committed involved his use of a motor vehicle. This series of robberies appears to have arisen from the appellant’s addiction to heroin, which he claims to have overcome in recent times. The appellant had a troubled upbringing and has difficulty maintaining stable relationships. The failure of his second marriage led to his use of heroin, which increased during the marriage to his third wife, also a heroin user. The appellant had previously maintained gainful employment but more recently struggled to hold a steady job. It was at this stage of his life in which the offending occurred. In arguing that the non-parole period was manifestly excessive, Mr Apps, for the appellant, submitted that the judge gave insufficient weight to the unsettled early life of the appellant and to his prospects for rehabilitation. Mr Apps put that the offending occurred during a time when the appellant’s “life fell apart”. He drew attention to the lack of prior convictions, his demonstrated ability to gain and maintain employment, the fact that he has overcome his heroin addiction and the support he enjoys from family and friends.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is true that there is good reason for hope that upon his release the appellant will resume a law-abiding life. He has the significant advantages to which Mr Apps referred. However it is apparent from the sentencing remarks that the judge did not overlook these factors personal to the appellant. Even giving them full weight it cannot be said that a non-parole period of ten years represents too great a proportion of the head sentence. Nor can an argument that the sentence as a whole was other than moderate be sustained.Conclusion For these reasons I would dismiss the appeal. ANDERSON J: I agree that this appeal should be dismissed and with the reasons given by Vanstone J. KELLY J: I agree that this appeal should be dismissed and with the reasons given by Vanstone J.

Ratio Decidendi

Legal Principle Established

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