SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SCHULTZ
[2010] SASCFC 47
Judgment of The Court of Criminal Appeal
(The Honourable Justice White, The Honourable Justice David and The Honourable Justice Peek)
5 November 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY
Appellant pleaded guilty to aggravated robbery by force - offence constituted contravention of s 137 CLCA- appellant and co-offenders threatened young victim on a bus with pocket knife - appellant sentenced to five years and six months imprisonment - appellant contended that sentence was manifestly excessive.
Held: Judge's starting point was too high - R v Place standard not applicable on account of appellant's youth, the fact that appellant had directed return of stolen items to victim, offence in the nature of an act of juvenile delinquency, and the salutary effect upon appellant of his experience of an adult prison before being sentenced - appeal allowed - appellant resentenced .
Criminal Law (Consolidation Act 1935 (SA) s 86A, s 134, s 137, s 170; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Le (2001) 212 LSJS 207; House v The King (1936) 55 CLR 499, applied.
R v Place (2002) 81 SASR 395, distinguished.
R v McGaffin [2010] SASCFC 22, discussed.
R v Cattell [2010] SASCFC 18; R v Carroll (1989) 154 LSJS 359; R v Weaver (1973) 6 SASR 265, considered.
R v SCHULTZ
[2010] SASCFC 47Court of Criminal Appeal: White, David, Peek JJ
WHITE J. The appellant appeals by permission against one of four sentences imposed in the District Court on 19 August 2010.
On Sunday, 11 October 2009, the appellant, a man named Struck and two female youths were travelling in company on a bus to McLaren Vale. During the course of the journey, Mr Struck demanded that a 15 year old boy, travelling by himself on the bus, hand over his mobile phone. He backed up the demand by presenting a pocket knife (a Swiss army knife) to the boy. The appellant was close by when this occurred, apparently lending support to Mr Struck. When the boy handed over his phone, the appellant and Mr Struck returned to their seats at the back of the bus.
Later in the journey, one of the girls (again using a knife) insisted that the boy come to the back of the bus. The appellant and his companions then demanded that the boy hand over a silver bracelet. They backed up this demand with an implicit reference to use of the knife, and the boy complied. The appellant also removed the boy’s wallet from his pocket. However, after the appellant looked at the boy’s student identification card and saw his age, he told his co‑offenders to return to the boy all that they had taken, and they did so.
The…
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CaseChat Overview and Summary
The primary legal issue before the Full Court was whether the sentencing judge erred in their determination of the starting point for the sentence and the subsequent reduction applied. Specifically, the court had to consider whether the standard sentencing approach for aggravated robbery, as discussed in *R v Place*, was appropriate given the particular circumstances of the appellant's case.
The court reasoned that the sentencing judge's starting point was too high and that the reduction applied was insufficient. While acknowledging the seriousness of the offence, particularly given the vulnerable victim and the appellant's prior youth criminal record, the court found that the *R v Place* standard was not applicable. This conclusion was based on a combination of factors: the appellant's youth, the offence being characterised as an act of juvenile delinquency, the appellant's prompt return of the stolen items to the victim, and the salutary effect of his experience in an adult prison prior to sentencing. The court determined that a more appropriate starting point for the aggravated robbery was four years and six months imprisonment, which was then reduced by 25% to account for the guilty plea, contrition, and willingness to facilitate justice.
The appeal was allowed, and the original sentence of five years and six months imprisonment for aggravated robbery was set aside. The court imposed a new sentence of three years and four months for aggravated robbery, to be served cumulatively with sentences for other offences, resulting in a total period of imprisonment of four years and 10 months. A non-parole period of two years and five months was fixed.
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
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Ratio Decidendi
Legal Principle Established
Established by: WHITE J, PEEK J
The appellant has made good his contention that a reduction of 10 per cent was in error, and in my opinion, a reduction of 25 per cent from the Judge’s starting point should have been allowed. Reconsideration As the appellant has established errors by the Judge in the fixing of his starting point and in the amount of the reduction from the starting point which he allowed, this Court should revisit the sentence. Like the sentencing Judge, I consider that the appellant’s offence was serious. It was committed against a particularly vulnerable victim, namely, a young boy travelling alone on a bus. He was a “soft” target. Both passengers on buses, and parents or guardians who rely on the transport of children by bus, are entitled to expect that they can do so in safety. The courts should do what they can to ensure that this is so. Further, the appellant’s criminal record as a youth suggests that he is at risk of becoming entrenched in criminal behaviour. An appropriate sentence had to reflect those considerations. Nevertheless, for the reasons given earlier, I consider that the standard discussed in R v Place of imprisonment for six to eight years was inappropriate in this case. My reasons for that conclusion appear above. It is the combination of the appellant’s youth, the element of juvenile delinquency in his offending, the prompt return of the stolen property to the victim, and the appellant’s experience before being sentenced of imprisonment in an adult jail which has led me to conclude that the standard discussed in Place is inappropriate. I would take as a starting point a sentence of imprisonment of four years and six months for the offence of aggravated robbery. I would reduce that sentence to three years and four months on account of the appellant’s plea of guilty, contrition, and willingness to facilitate the course of justice. Accordingly, I would allow the appeal. I would set aside the sentence of imprisonment for five years and six months imposed in the District Court for the offence of aggravated robbery. I would impose in its place a sentence of imprisonment for three years and four months. The sentence of four months imposed by the District Court Judge for the offence of using a motor vehicle without consent should be served cumulatively on this sentence, and the concurrent sentences of 14 months and six months imposed by the District Court Judge for the offences of serious criminal trespass and dishonestly taking another person’s property should be served cumulatively upon the first two sentences. The total period to be served in custody is four years and 10 months. Like the Judge, I consider that the appellant and the community may benefit from an earlier than usual release on parole and I would fix a non-parole period of two years and five months. The sentence for the offence of aggravated robbery should be taken to have commenced on 15 October 2009 being the date upon which the appellant was taken into custody.