R v Rooke - [1998] SASC 6738

R v ROOKE

Court of Criminal Appeal: Doyle CJ, Williams and Bleby JJ

DOYLE CJ

This is an appeal against sentence.
The appellant pleaded guilty in the District Court to the offence of armed robbery. He was sentenced to imprisonment for six years. The sentencing judge fixed a non-parole period of three years. The appellant complains that the sentence is excessive.
It is submitted that the judge made insufficient allowance for the plea of guilty, and for the contrition and remorse shown by the appellant. It is also complained that the sentence is excessive when compared with that imposed on a co-offender, Mr Golchert.
I do not need to say much about the circumstances of the offence. It was committed by the appellant in company with two other men, one of whom was Mr Golchert. The three offenders were in Adelaide in the course of a round Australia holiday. They were very short of money. There was talk of stealing some money or other property.
In the early hours of the morning the group set off in a car driven by Mr Golchert. Mr Golchert was aware of the plan to rob someone or to steal some money, but had no idea that a weapon would be used. He was ultimately sentenced on that basis.
Mr Golchert waited in the car. The appellant and Mr Rodwell entered a service station. Mr Rodwell had an unloaded .22 rifle. The attendant was robbed of about $214. The offenders were apprehended by the police quite quickly. All of the offenders appear to have made full admissions to the police.
The appellant was 27 years of age when sentenced. He has a very bad criminal record. He has a good number of convictions for stealing, two for break and enter - some of these convictions just referred to were as a child, and some as an adult - and a conviction for causing grievous bodily harm. That offence was committed when he was an adult. He also has a long string of traffic convictions.
A helpful report from a psychologist, Dr White, was tendered to the sentencing judge. The report discloses a disturbed childhood. The appellant also had an alcohol problem. Dr White summarised the position as follows:
“The current assessment indicated that your client was significantly cognitively impaired such that his capacity to solve very simple problems was very limited. Indeed, his level of functioning was within the mentally retarded range for non-verbal skills. In my submission, your client’s clinical and personality profile reflected features of impulsiveness, vulnerability, and self-destructiveness. In combination with alcohol and drugs your client’s general profile is best compared to that of a walking time bomb.”
The appellant, as I said, made full admissions. He pleaded guilty at an early stage. He had spent six months in custody before being sentenced.
The appellant, while in custody, has made an attempt to deal with his alcohol problem. Evidence was given that he had participated in a drug and alcohol project…

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 Rooke

Details

AGLC: R v Rooke [1998] SASC 6738
Case: [1998] SASC 6738
Decision Date: 19 June 1998

CaseChat Overview and Summary

In the Court of Criminal Appeal, Doyle CJ, Williams and Bleby JJ heard an appeal against sentence brought by the appellant, who had pleaded guilty to the offence of armed robbery. The appellant was sentenced to imprisonment for six years, with a non-parole period of three years, and contended that the sentence was excessive. The appellant argued that the sentencing judge did not adequately consider the plea of guilty, contrition, and remorse, and that the sentence was disproportionate when compared to that of a co-offender. The legal issues before the court were whether the sentence imposed was excessive and whether the discount for the plea of guilty was appropriate.

The court found that while the appellant had shown some remorse and had a history of cognitive impairment and alcohol problems, the need for deterrence in sentencing for armed robbery was paramount. The court considered that the starting point of seven years was not excessive and that the judge's allowance of a one-year discount for the plea of guilty, while low, was not outside the usual range. The court concluded that the sentence imposed, six years' imprisonment, was within the range of sentences for this offence and that the non-parole period was moderate. The court found that the disparity between the sentences imposed on the appellant and the co-offender reflected differences in the degree of culpability and personal circumstances.

The court dismissed the appeal, holding that the sentence was not excessive and that the non-parole period was not excessive. The order of the court was that the appeal be dismissed.

Orders