R v ROBINSON
[2007] SASC 105
•27 March 2007
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 105Court 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 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.
The courts have consistently treated crimes of this nature as very serious offences. In R v Knight (1981) 26 SASR 573, at 574-5, this Court reiterated that in sentencing for armed robbery offences, deterrence must take priority over any consideration of the rehabilitation of the offender. The Court observed that only in extraordinary circumstances can sentences be attended with any measure of leniency.
More recently, in R v Place (2002) 81 SASR 395 at 429, this Court referred to the prevalence of these crimes and the vulnerability of their victims, and stressed the importance of general deterrence and the protection of the public. The Court noted that such crimes are frequently committed by persons addicted to and affected by drugs, in order to fund their addiction.
Over many years this Court has said that where a robbery under arms is committed, an offender can expect to receive a sentence of six to eight years imprisonment, even where the firearm is not discharged: R v Dorning (1981) 27 SASR 481, at 484; R v Place at 407-408.
There is no “norm” for setting the non-parole period. It must always depend upon the facts of the particular case. However the non-parole period must bear a proper relationship to the head sentence and must reflect the punitive, deterrent and preventive purposes of punishment: R v Creed (1985) 37 SASR 566; R v Power [2003] SASC 288. It is clear that there is no standard for the proportion of the head sentence which the non-parole period should represent.
Analysis
The appellant had a troubled upbringing. At the time of this offending he was addicted to heroin and going through a difficult period in his life. While this may explain the offending, it does not excuse it or detract from its seriousness.
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.
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