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…

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 [2004] SASC 189
Case: [2004] SASC 189
Decision Date: 2 July 2004

CaseChat Overview and Summary

In the case of R v Robinson, the respondent had pleaded guilty to multiple serious offences including aggravated serious criminal trespass, false imprisonment, threatening life and common assault. These offences arose from a siege where the respondent, while on parole, took a young man hostage in a house, using him as a human shield, and made threats with a knife and an axe. The District Court sentenced the respondent to 57 months and 6 days imprisonment with a non-parole period of 26 months, taking into account the 15 months already served. The Crown appealed against the sentence, arguing it was manifestly inadequate.

The legal issues before the court involved the adequacy of the sentence imposed by the District Court and whether it warranted an appeal by the Crown. The court was required to determine if the sentence was so inadequate that it justified intervention by the appellate court and, if so, what sentence should be imposed as a replacement. The court considered whether the sentencing judge erred in reducing the sentence based on the respondent's mental state and potential hardship in serving the sentence. Additionally, the court examined whether the non-parole period was appropriately set.

The court found that the sentence imposed was indeed so inadequate as to warrant an appeal by the Crown. The reasoning involved highlighting errors in the sentencing process, such as the inappropriate discount allowed for the respondent's mental state and the excessively low non-parole period. The court underscored the importance of a sentencing judge not deducting specific periods from a starting point based on extraneous factors, which can give an impression of mathematical precision in an inherently imprecise process. Furthermore, the court determined that the non-parole period should be set at a level towards the lower end of the range of available sentences, consistent with precedents. Consequently, the respondent was re-sentenced to 6 years, 1 month and 6 days with a non-parole period of 4 years.

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

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.

Ratio Decidendi

Legal Principle Established

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