R v Robinson - [2004] SASC 189

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ROBINSON
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Mullighan)
2 July 2004
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
The respondent pleaded guilty in the District Court to a number of offences which included aggravated serious criminal trespass, false imprisonment, threatening life and common assault, all arising from one incident - during the course of the incident the respondent used a young man in a house in which he had taken refuge following a police chase, as a human shield - he made a number of threats with a knife and an axe during the ensuing siege which lasted several hours -the offences were committed while he was on parole with respect to earlier offending - the sentencing judge imposed a single sentence of 57 months and 6 days with a non-parole period of 26 months, after allowing for 15 months imprisonment already served - on an appeal by the Crown, held that the sentence imposed was so manifestly inadequate as to justify leave to appeal and the allowance of the appeal - respondent re-sentenced to 6 years 1 month and 6 days (including 10 months and 6 days being the balance of the sentence upon which he had been released on parole) with a non-parole period of 4 years - observations as to imposition of a sentence at the lower end of the range of available sentences on a successful crown appeal.
Criminal Law (Sentencing) Act 1988 s 18A, s 20A, s 20B, referred to.
Everett v R (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 231 LSJS 76; R v Wiskich (2000) 207 LSJS 431; Dinsdale v The Queen (2000) 202 CLR 321, considered.

R v ROBINSON
[2004] SASC 189
Court of Criminal Appeal: Doyle CJ, Perry and Mullighan JJ

DOYLE CJ: I agree generally with the reasons given by Perry J. I consider that the sentence imposed by the District Court Judge was well below an appropriate level for such serious offending, even making allowance for the various mitigating factors that are identified by the sentencing Judge and by Perry J. I consider that a starting point in excess of eight years imprisonment would have been appropriate. I also consider that, quite apart from that, the reduction by the Judge for the plea of guilty and for other matters was greater than was warranted.
I consider that this is an appropriate case in which to grant leave to appeal. The sentence is well below the minimum acceptable sentence for these offences. Were it not for the fact that this is an appeal by the Director of Public Prosecutions, I consider that a higher sentence than that proposed by Perry J would be appropriate. The grant of leave is appropriate to maintain public confidence in the administration of justice.
For those reasons I would grant leave to appeal, allow the appeal, set aside the sentence imposed by the District Court, and substitute a single sentence of imprisonment for five years and three months. That sentence is to be cumulative upon the unexpired balance of the previous sentence, namely 10 months, six days. That means that the total period of imprisonment to be served is six years one month six days.
In relation to that total period I would fix a non-parole period of four years.
I would direct that the sentences of imprisonment and the non-parole period commence on the day on which Mr Robinson was sentenced in the District Court, 23 December 2003.
PERRY J: This is an application by the Director of Public Prosecutions (the DPP) for leave to appeal against the sentence imposed on the respondent following his plea of guilty in the District Court to a number of offences committed on 30 April 2002.
In accordance with normal practice, the application for leave was heard together with argument on the substantive merits.
Early in the morning of the day in question the respondent was seen to be behaving suspiciously in the grounds of a nursing complex at Netley. After police were summoned, they questioned him. The police officers were not satisfied with the respondent’s answers. They said that they would take him to his flat on Marion Road.
He thereupon ran off, the police following in hot pursuit.
After a long chase through the neighbourhood, the respondent was eventually located at the house of the victim, a young man of 17 years of age whom I will call Joshua. He lived at the house with his father and his brother, who had both left home earlier that morning. The respondent had no prior connection with the house and was unknown to the occupants.
After the respondent had entered the house, he subjected Joshua to what was described by the sentencing judge as a terrifying and harrowing experience, which lasted almost four hours. In the course of that time, he threatened Joshua with a knife and an axe, and used him as a hostage in an endeavour to dissuade the police from entering the house.
Eventually, when they did so, they used a capsicum spray which affected both Joshua and the respondent.
When a police officer entered a bedroom into which the respondent had taken Joshua, the respondent swung the axe at the police officer, narrowly missing him. The respondent then seized Joshua, and held the knife to his throat.
The police officer retreated. Efforts were then made to resolve the situation by a police negotiator who spoke to the respondent by telephone. After several hours, during which the respondent continued to threaten Joshua, the respondent emerged from the bedroom with Joshua, using him as a human shield, and moved towards three armed Star Force officers who had entered the house. When the respondent attempted to re‑enter the bedroom, one of the police officers fired a shot, which passed through Joshua’s shoulder and struck the respondent in the neck.
This brought the siege to an end.
Joshua and the respondent were treated at the Royal Adelaide Hospital for gunshot wounds. They both suffer ongoing disability as a result.
Initially, the respondent was charged on an information which alleged seven counts all arising out of the incident in question.
Eventually he pleaded guilty to aggravated serious criminal trespass (maximum penalty life imprisonment), false imprisonment (no prescribed maximum penalty), threatening life (maximum penalty 10 years imprisonment) and common assault (maximum penalty two years imprisonment).
On the day upon which he sentenced the respondent, the sentencing judge published separately reasons for a ruling which he made concerning the application of s 20A and s 20B of the Criminal Law Sentencing Act 1988, which sections came into force on 27 July 2003. He ruled that the sections did not apply to offences committed before that date. No question now arises as to the correctness of that decision.
At the time of the offending in question, the respondent was on parole. The balance of the sentence upon which he had been released on parole at the date of the commission of the present offences, was 10 months and 6 days.
On 13 May 2002, which was while the respondent was in custody on the present charges, the parole board issued a warrant for his arrest for failing to report and for breach of a designated parole condition.
The warrant was executed on 16 May 2002. His period in custody between that date and 15 November 2002 is referable to the warrant, and accordingly did not count against any sentence to be imposed for the present offending.
As at the date upon which the respondent was sentenced, that is 23 December 2003, excluding the period during which he was in custody pursuant to the warrant, he was entitled to a credit of about 15 months imprisonment served with respect to the present offending.
In the result, the sentencing judge imposed a sentence of 57 months and 6 days against which he fixed a non-parole period of 26 months, both to date from which sentence was pronounced, that is 23 December 2003.
It is from that sentence that the Crown seeks to appeal.
The following passage from his remarks on penalty indicates the basis upon which the sentencing judge arrived at that sentence:
“I intend to impose one sentence for all your offending. An appropriate sentence would have been eight years imprisonment, reduced to six years imprisonment to give you credit for your pleas of guilty. Bringing to account the time totally approximately 15 months that you have already spent in prison in respect of these offences, the sentence would have been 57 months imprisonment. There remains the question of what if any further reduction could properly be made to allow for the matters in Dr Raeside’s view as to the effects of your mental state at the time of the offences and the impact of your present condition as a particular hardship under which you will serve your sentence. Without any pretence to precision on those accounts the sentence of the court is 47 months imprisonment. That sentence is to be served cumulatively upon the balance sentence of ten months and six days which you must serve from today.
The aggregate of the sentences that you must now serve is 57 months and six days.
In fixing a non-parole period I have regard to all the matters I have earlier canvassed, as they can appropriately be taken into account for this purpose, the submissions of your counsel and also your intention, expressed in your letter to which I have earlier referred, to desist from illicit drug use and, aided by your girlfriend, to strive to bring about a change from your past criminal activities.
I fix a non-parole period of 26 months which will be counted from today.”
The grounds upon which leave to appeal are sought are:
“That both the head sentence and non-parole period are manifestly inadequate in that they fail to maintain adequate standards of punishment. In particular:
(a)the sentence fails to reflect the criminality of the conduct, and;
(b)the reduction made for the mental state and physical condition of the prisoner is excessive in all of the circumstances.”
Principles governing prosecution appeals
The jurisdiction to grant leave to the prosecution to appeal against sentence “should be exercised only in the rare and exceptional case”.[1] It is not sufficient to justify the grant of leave to appeal that the sentence under review simply appears too low. A complaint by the Crown that a sentence is “manifestly inadequate” will not justify the granting of leave unless it can be demonstrated that to allow the sentence to stand would “shock the public conscience”,[2] or to put it another way, “shake public confidence in the administration of justice”.[3]
[1]    Everett v R (1994) 181 CLR 295 at 299.
[2]    R v Osenkowski (1982) 30 SASR 212 per King CJ at 213.
[3]    R v Nemer (2003) 231 LSJS 76 at 79 [24].
Another basis upon which a prosecution appeal may be allowed is in circumstances where it is necessary in order to “enable the courts to establish and maintain adequate standards of punishment” for the crime in question.[4]
[4] Osenkowski (supra) per King CJ at 213.
The two bases are not mutually exclusive, and in a particular case their application may overlap.
The DPP advanced the application on the basis that its allowance was necessary to maintain adequate standards of punishment. But I doubt that it could be said that the court has established any particular standard of punishment for offences of the kind now in question. The circumstances in which such offending can be committed may vary significantly from one case to another.
However, the grounds set out in the notice of appeal seem to me to have been drawn up broadly enough to support intervention by this Court if the Court was to be satisfied that the particular sentence was so manifestly inadequate, given the circumstances of the offending, as otherwise to justify intervention.
The merits
The respondent is a 26 year old man with a long record of prior offending. His first convictions were recorded in 1991 when he was convicted in the Broken Hill Children’s Court, of assault. Thereafter he has been convicted on further assault charges, breaking and entering, larceny, escape from custody, traffic offences, possessing cannabis and equipment to administer the drug and a variety of street offences.
In September 1997 he was convicted in the District Court and sentenced to 18 months imprisonment on a charge of unlawful sexual intercourse.
On 11 May 2000 in the Magistrates Court sitting at Mount Gambier, the respondent was convicted of assault with intent to resist lawful apprehension (two counts), non-aggravated serious criminal trespass, damaging property, illegal use of a motor vehicle, driving under the influence, and giving a false name and address.
On those charges he was sentenced to 2 years imprisonment. In addition he was obliged to serve the balance of a previous term of imprisonment upon which he had been released on parole before committing those offences. In the result, the head sentence which was imposed was 3 years, 4 months and 2 days imprisonment with a non-parole period of 18 months.
It was while the respondent was on parole following his incarceration on those offences, that the present offending was committed.
The sentencing judge had the benefit of a report from Dr Craig Raeside, a psychiatrist. The respondent informed Dr Raeside that following his release on parole, which was some time in 2001, the respondent resorted to using amphetamine at a rate of about one and a half grams a day. According to the history given by the respondent to Dr Raeside, the respondent’s mental state became steadily worse, and he experienced paranoia, visual hallucinations and markedly scattered thoughts.
He returned to a relationship with a young woman with whom he had previously associated, but his lifestyle remained unsettled and at times he lived on the streets.
The respondent’s counsel submitted to the sentencing judge that he had not slept for about eleven days because of the amphetamine use, before passing out early on the morning in question. The appellant then gave a rather confused story of having been woken up and setting off to look for what he thought were missing items of personal property, during the course of which he saw a police car draw up, spoke to the police officers, complaining that someone had stolen his property, but then, thinking that he was being “set up” as having been involved in breaking offences, fled.
From then on, he claimed that he had no clear memory of what occurred.
Whatever may be the truth of that account of the matter, Dr Raeside was prepared to accept that the respondent was experiencing psychotic symptoms arising out of amphetamine abuse and sleep deprivation, which might explain the respondent’s claim to have a limited memory of the events and a degree of paranoia.
However, Dr Raeside was of the view that the respondent’s mental state at the relevant time was not such as to deprive him of an understanding of the nature and quality of his actions or an awareness that they were wrong.
In the relevant respects, another psychiatrist, Dr Jules Begg., whose report was before the sentencing judge, reached a similar conclusion.
Given the psychiatric opinions, the sentencing judge said that any allowance in favour of the respondent with respect to his mental state at the time of the offending should “be but to a small extent”.
In my opinion, that view was justified. It is in accordance with the approach identified in the decision of this Court in R v Wiskich.[5]
[5] (2000) 207 LSJS 431.
In that case, Martin J reviewed a long line of authority bearing on the question of the allowance to be made in the sentencing process by reason of the mental condition of the offender. In his reasons for judgment, with which Prior and Williams JJ agreed, Martin J concluded:[6]
“The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.”
[6] Ibid 457.
The physical consequences of the gunshot injury on the respondent were, according to the medical reports before the sentencing judge, severe. They include facial sensory loss with chronic pain and headaches, some dysfunction in the right eyelid and pupil, a degree of deafness in the right ear, restriction in neck and jaw movements and a susceptibility to further injury which has resulted in the respondent being held in isolated detention.
The sentencing judge concluded that the respondent’s “time in prison will subject [the respondent] to greater hardship than most other inmates”.
In her submissions on behalf of the DPP, Ms Abraham QC emphasised that the respondent’s offending was in a serious category. She drew attention to the fact that the offences were committed to avoid apprehension. The period of time over which the offences were committed, during which the victim was held as a hostage, was approximately four hours.
The use of an axe and a knife was clearly an aggravating circumstance, as were the repeated threats by the respondent to kill the victim, and the action of the respondent in using him as a human shield.
Ms Abraham QC emphasised the need to protect police officers and members of the public from the actions of offenders who find themselves in like situations.
The respondent committed these offences against a background of prior convictions, including offences of violence and offences against the police, including more than one prior conviction for escaping or attempting to escape custody.
Ms Abraham QC submitted that a further aggravating circumstance was that the respondent was on parole when the offences were committed.
In my view, those contentions do identify significant matters of aggravation. They put the respondent’s offending into a serious category in which it was necessary for the sentence to reflect a substantial allowance for general and personal deterrence and for the future protection of the public, as well as to operate as adequate punishment for the offending.

Bearing those matters in mind, I have reached the conclusion that the sentence under review falls so far short of an appropriate penalty as to justify intervention on an appeal by the Crown.
Conclusion
In my view, apart from the fact that the sentence ultimately imposed was far too low, the sentencing judge erred in allowing a separate reduction of the order of 10 months against 57 months imprisonment by reference to the respondent’s mental state at the time of the offending and the fact that he will suffer particular hardship in serving his sentence.
It must be accepted that a sentencing judge should indicate the discount to be allowed for a plea of guilty, remorse (where present), and co-operation with the authorities. Beyond that, it is, in my view, undesirable for a sentencing judge to deduct specific proportions or periods from some starting point by reference to other factors. To do so may give an impression of precise calculation in a process which can never be carried out with mathematical precision.
I am also of the view that the sentencing judge fell into error in fixing such a low non-parole period - 26 months - which was less than half of the head sentence of 57 months and 6 days.
I bear in mind that if a Crown appeal against sentence is to be allowed and some other sentence substituted, that sentence should be fixed at a level towards the bottom of the bracket of possible sentences: see Dinsdale v The Queen[7] per Kirby J:[8]
“... it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences.”
[7] (2000) 202 CLR 321.
[8] Ibid at 341 [42].
Bearing that in mind, but not without some hesitation, I would adopt the same starting point as that adopted by the sentencing judge, namely 8 years. I would reduce that to 6 years and 6 months by reference to the respondent’s plea of guilty, a reduction of 20 per cent. If that was to be further reduced by the 15 months already spent in custody with reference to the offending in question, the sentence for this offending would become 5 years and 3 months.
To that should be added 10 months and 6 days, being the balance of the sentence upon which the respondent had been released on parole remaining as at the date of the commission of these offences.
That would bring up an overall head sentence of 6 years, 1 month and 6 days.
Against that I would fix a non-parole period of 4 years, the head sentence and the non-parole period to date from the date upon which the respondent was sentenced in the District Court, that is, from 23 December 2003.
MULLIGHAN J: I agree that leave to appeal against the sentence should be granted to the Director of Public Prosecutions and that the appeal should be allowed for the reasons given by Perry J. Also, I agree with his approach to re‑sentencing on a prosecution appeal. If we were not to sentence at the lower end of the range, I would have adopted a starting point of 12 years in view of the grave nature of the respondent’s crimes. However, as this is a Prosecution appeal, I am content with the overall approach by Perry J and with the sentence which he proposes.
With respect to the view expressed by Perry J, I do not think it is undesirable for a sentencing judge to indicate a specific allowance which is made for a particular matter of mitigation in addition to mentioning reduction in the sentence for established policy reasons, namely a plea of guilty, remorse and contrition, cooperation with authorities and giving evidence against a co‑offender or some other accused. It must always be kept in mind that the offender is to be informed of the reasons for the sentence which is imposed and if there is a compelling matter of mitigation which results in a sentence well below what would otherwise have been imposed, both the offender and the community should be informed of the reasons for, and the extent of, the reduction, in an appropriate case. Such a circumstance may not commonly occur, but when it does, the sentencer is entitled to specify the reduction.
In the present case, I think the learned Judge was entitled to specify the extent of the reduction he fixed on account of mental illness. However, I do not think the extent of the reduction was justified for the reasons given by Perry J.
I agree with the sentence which he proposes.