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 while in prison. 

He wrote a letter to the sentencing judge expressing his regret over the offence.  He said that he realised that his life was at a turning point.  His girlfriend was pregnant at the time, and has since given birth to their child.  He said that he wanted to discharge his responsibilities to her and to their child.  The judge referred to these matters, and clearly took them all into account.

He referred to the prevalence of the offence.  He was right to do so.  There is an increase in the number of armed robberies committed at service stations and other retail outlets that remain open late at night.  It is clear that such places are seen as easy targets.  Armed robbery often has severe effects on the victims.  The attendant in this case is still suffering from the after effects.  As well, this offence causes considerable community concern. 

The court must respond to the prevalence of this offence.  The court must do what it can by imposing appropriate sentences to dispel the attitude that armed robbery at such places is an easy way to make money. 

Armed robbery is an offence which has always attracted heavy penalties.  It is not usually committed in the heat of anger, or of passion, or at a time of emotional turmoil.  By and large, it is committed by people who know what they are doing, even if alcohol or drugs or lack of mature thought contribute to an element of impulsiveness that features in some of these offences. 

The judge took the view that deterrence was an important factor in sentencing the appellant, and I agree with the judge.  The appellant’s personal circumstances and his evident contrition did provide a basis for mitigation.   But, unfortunately, the judge was right to say that deterrence had to play a significant part in fixing the sentence. 

In my opinion, it cannot be said that a starting point of 7 years, which is where the judge started, is excessive.   A lesser starting point would not have reflected the need for deterrence.  The starting point is well within the range of sentences usually imposed for this offence.  It could have even been higher without being excessive. 

I do not agree that the disparity between the sentence imposed on the appellant and that imposed on Mr Golchert calls for intervention.  Mr Golchert was sentenced to imprisonment for two years and six months, with a non-parole period of 8 months.  That sentence was a very merciful one.  But Mr Golchert was convicted only of robbery, not armed robbery.  He had no idea that a weapon would be used.  He had only one very minor conviction. 

The lesser offence and the fact that he was to be treated as a first offender meant that the judge could start from a much lower starting point, and could be more lenient on account of his personal circumstances. 

I consider that the different sentences do reflect differences in the degree of culpability, and in the differences of the personal circumstances of the two offenders.  I refer to R v McGowan (1986) 42 SASR 580 at 582 to 583. I agree that Mr Golchert was treated leniently, but I consider that the sentencing judge was entitled to do so.

That leaves the issue of whether the sentencing judge erred in deducting only one year on account of the plea of guilty, a reduction from 7 years’ imprisonment to 6 years’ imprisonment.

The court has generally allowed a significant discount for a plea of guilty, especially if there are indicators of genuine regret and remorse, and of an intention to change.   Discounts in the range of 15 percent to 25 percent are quite common in such cases, and in exceptional cases they have been even greater.  However, there are also cases in which the discount has been right at the bottom of that range, and, indeed, less than 15 percent. 

The extent of the discount to be given is not susceptible of precision.  The court does not accept that there is a standard to be applied mathematically.  I regard the discount allowed, one year, or about 14 percent, as rather low.  However, the prospect of the appellant ever having escaped conviction for the offence was a remote one.  The offenders were caught red-handed.  That probably explains the low discount.  I am not satisfied that the discount is outside the usual range, although I accept that it is low. 

As well, the sentence actually imposed, 6 years, remains well within the range of sentences for this offence, even allowing for the early plea of guilty. 

It is the sentence imposed that the court must consider, not the weight allocated by the judge to the individual matters considered in arriving at the final result. 

Different judges will give different weight to the various factors that go to make up the final sentence.  A low discount for a plea of guilty is not in itself an error of law, or an error of principle that means that the sentence must be set aside whatever the final result is. 

The other way of putting this is to say that however one analyses the case it is difficult to see how a sentence of 6 years’ imprisonment could be excessive, and I would add, how one could justify a lesser sentence for this offence, because I cannot say that the head sentence actually imposed is excessive. 

In my opinion the appeal on that score must be dismissed.  I should add that in my opinion the non-parole period is quite moderate.  In no sense could it be called excessive.  In my opinion it takes account of the mitigating factors.  For those reasons I would dismiss the appeal.

WILLIAMS J:      I agree.

BLEBY J:             I also agree.

DOYLE CJ:          Accordingly, the order of the court is that the appeal be dismissed.