R v Schultz - [2010] SASCFC 47

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 47
Court 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 robbery from the boy constituted the offence of aggravated robbery by force, a contravention of s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). This was an aggravated offence because of the use of the knife and also because it was committed in company. The maximum penalty for this offence is life imprisonment.
Shortly after alighting from the bus at McLaren Vale, the appellant and his companions stole a four-wheel drive vehicle. With Mr Struck as the driver, they drove the vehicle to Victor Harbor and eventually abandoned it at Strathalbyn the following day. The taking of the vehicle constituted the offence of driving a motor vehicle without the owner’s consent, a contravention of s 86A of the CLCA. The appellant had a previous conviction for this offence and so was liable to imprisonment for a period of not less than three months and not more than four years, in addition to a licence disqualification.
After abandoning the vehicle, the appellant and Mr Struck broke into a house in Strathalbyn and stole a number of items including food, clothing, jewellery and cash. This conduct comprised the offence of serious criminal trespass (residential), a contravention of s 170(1) of the CLCA and theft, a contravention of s 134(1) of the CLCA. The maximum penalty for these two offences is imprisonment for 15 years and 10 years respectively.
The appellant pleaded guilty to all the offences. He acknowledged being a participant in a joint enterprise in the commission of all four offences.
Rather than proceeding under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA), the Judge imposed individual sentences for each of the offences. Sentencing in this manner achieved a number of purposes. It demonstrated to the appellant how the criminality of his conduct was viewed; it explained to the victims how the offending against them individually was regarded by the courts; and it has greatly facilitated this Court’s task on the appeal.
In relation to the offences of serious criminal trespass and theft, the Judge imposed sentences of 14 months and six months imprisonment respectively, but ordered that those two sentences be served concurrently. For the offence of aggravated robbery, the Judge imposed a single sentence of imprisonment for five years and six months, and for the illegal use of the motor vehicle, a sentence of imprisonment for four months. The Judge ordered that each of the two concurrent sentences and the sentence of four months be served cumulatively on the sentence of five years and six months. This meant that the total period of imprisonment to be served by the appellant was seven years.[1]
[1] The endorsements on the back of each Information and the Report of Prisoner Tried record that a head sentence of seven years imprisonment was imposed. This is incorrect. The effect of the Judge’s sentence was to require the appellant to serve a total period of seven years in custody, not to impose a single sentence of seven years imprisonment. See R v Cattell [2010] SASCFC 18 at [25]-[26].
The Judge also said that he had reduced each of these sentences by “about 10 %” on account of the appellant’s pleas of guilty.
The appellant appeals only against the sentence of five years and six months imposed for the armed robbery offence. He contends that this sentence was manifestly excessive, because the Judge’s starting point for the sentence was too high, and because the reduction he allowed for his plea of guilty, expression of contrition and willingness to facilitate the course of justice was insufficient.
The Appellant’s Personal Circumstances
The appellant was 19 years of age at the time of the offences and had just turned 20 years of age at the time of sentencing. With his sister, he was adopted at the age of five or six years and was brought up by his adoptive parents in a loving and stable home.
However, the appellant had difficulties at school and left at age 14. His intellectual functioning is said to be in the borderline range, and while at school he was diagnosed with Attention Deficit Disorder.
Since leaving school, most of the appellant’s employment has been of a labouring kind.
As a youth, the appellant had a number of court appearances. His offences included arson, criminal trespass, theft and many traffic and public disorder offences. As an adult, the appellant has committed the offence of assault and being unlawfully on premises, as well as numerous breaches of bail.
The offences on 11 and 12 October 2009 were committed only some six weeks after the appellant had been released from detention imposed for previous offences.
The Judge described the appellant as a “binge drinker” and noted that he had been consuming alcohol since the age of 14 years. In addition, the appellant has used a number of illicit drugs, including cannabis, ecstasy and amphetamine. The Judge described the appellant as having “severe polydrug abuse problems” and as suffering from alcoholism.
On 11 October 2009, the appellant and his companions had been consuming alcohol. They agreed to travel to Melbourne. This was a vague and ill-conceived plan. Its ineptness is illustrated by the fact that they had thought it necessary to travel through Victor Harbor, and had taken the bus to McLaren Vale as part of that journey.
The appellant was arrested on 15 October 2009 and had been remanded in custody since that date. His adoptive parents continue to support him and have visited him regularly while in custody. They have indicated their willingness to have the appellant return to live with them, and to provide him with support upon his release from custody.
Was the Judge’s Starting Point Too High?
Given that the sentence of five years and six months for the offence of aggravated robbery was reached after the Judge had allowed a reduction of “about 10 %”, the starting point must have been about six years and one month or six years and two months. Such a starting point is at the lower end of the range of six to eight years imprisonment suggested by this Court in R v Place as appropriate for an offence of armed robbery.[2] On its face, that suggests that it may be difficult to characterise the starting point as manifestly excessive.
[2] [2002] SASC 101 at [100]; (2002) 81 SASR 395 at 429.
The Court in Place deprecated any categorisation of the different forms of armed robbery for the purposes of determining sentence. It made the point that armed robberies committed against a member of the public on the street, or at an ATM, involve victims who are no less vulnerable than those working alone in service stations, pharmacies or shops, involve no less risk of harm, and are often committed for the same purpose, namely, to meet drug addictions.[3] Nevertheless, the majority (Doyle CJ, Prior, Lander and Martin JJ), with whom Gray J agreed, said:
The types of armed robberies to which the standard of six to eight years applies can be described in broad terms only. The range of both personal and objective circumstances associated with crimes of armed robbery is such that it is inappropriate to attempt to be any more precise. It is the circumstances of a particular offence and offender that determine whether the standard is applicable. The importance of carefully assessing those circumstances should not be diminished by the use of labels or by attempting to create categories of offending.[4]
[3] Ibid at [102]-[106], 429-430,.
[4] Ibid at [101], 429.
While the appellant’s submissions did not seek to avoid the seriousness of his offending, he did emphasise some particular features in support of the contention that application of the six to eight year standard was inappropriate in his case. The submission was that the Judge had not referred at all to some of these matters and had attached insufficient weight to others.
First, there is the appellant’s youth. The appellant was 19 years and three months of age at the time of his offending. It is well accepted that the youth of an offender is a mitigatory factor.[5] This is because courts recognise that the young and immature are more prone to ill-considered or rash conduct; and may not appreciate fully the nature, seriousness and consequences of the criminality involved in their conduct. It is also because they recognise the potential for young offenders to be redeemed and rehabilitated and because they consider that the effect of incarceration in an adult prison is likely to impair, rather than improve, the young offender’s prospects of rehabilitation. [6]
[5] R v Le [2001] SASC 28 at [16]; (2001) 212 LSJS 207 at 208.
[6] R v McGaffin [2010] SASCFC 22 at [69].
A number of the authorities reflect these considerations. In R v Carroll,[7] King CJ spoke of courts being “inclined to mercy in the case of young people facing prison for the first time”,[8] and in R v Weaver[9] Bray CJ, Mitchell and Sangster JJ said:
Whenever a young person is before the court, particularly upon his first appearance as an adult, it seems to us that his rehabilitation should be a prominent consideration in fixing the sentence.[10]
[7] (1989) 154 LSJS 359.
[8] Ibid at 360.
[9] (1973) 6 SASR 265.
[10] Ibid at 267.
The Judge did refer to the appellant’s age at the time of sentencing but did not refer to the sentencing principles arising from the appellant’s youth to which I have just referred.
Next, counsel emphasised that it was the appellant who had directed his co‑offenders to return the stolen property to the victim. He had done this when he realised that the victim was only 15 years of age. The return of the property seems to have been in the nature of an act of mercy. It also seems to have reflected some underlying decency in the appellant and an appreciation on his part of the effect of the robbery on the boy. By itself, this action of the appellant serves to distinguish the present case from many of the armed robberies to which the standard discussed in R v Place applies.
The Judge did not overlook this feature of the case. He said specifically that he would take it into account in the appellant’s favour. The appellant submitted however that the Judge had failed to attach sufficient weight to this factor.
Next, counsel for the appellant emphasised that the robbery was impetuous and rash. It was committed in circumstances in which the appellant and his co‑offenders were bound to be detected. The security camera on the bus made it inevitable that the appellant and his co‑offenders would be identified. Counsel characterised the appellant’s conduct as a kind of juvenile delinquency rather than being a pre‑meditated and planned incursion into criminal conduct. In my opinion, that is an appropriate characterisation of the appellant’s conduct. It is also consistent with the assessments made of him by two psychologists. One, Dr Cayley, assessed the appellant’s overall intelligence as being within the borderline range, his verbal skills as approximately equivalent to the average child aged 11 years, and his non‑verbal skills as approximately equivalent to the average child aged nine years and three months.
The Judge specifically referred to these features and it cannot be said, in my opinion, that he overlooked them. The appellant accepted this but maintained that the Judge had given insufficient weight to these considerations.
Finally, there is the fact that the appellant had been in custody continuously from his arrest on 15 October 2009 until being sentenced on 19 August 2010. This was his first experience of an adult prison. The Judge did take this into account in the fixing of the commencement date for the sentence. However, he does not appear to have taken into account the salutary effect on the appellant of the actual experience of imprisonment in an adult prison even before he was sentenced. In my respectful opinion, he was in error in failing to do so.
The Judge attached significant weight to the appellant’s poor criminal record. He explained that the sentences imposed upon the appellant were higher than those imposed upon Mr Struck because of the appellant’s worse criminal record.
The Judge also attached significant weight to the psychological assessment of the appellant, saying:
You possess most of the traditional static and dynamic criminogenic risk factors identified by research as predisposing an individual towards offending behaviour. You have an anti-authoritarian attitude having socially gravitated towards a predominantly negative peer group. You have a history of significant juvenile offending. You have a history of generalised impulse control problems in the community. You have adult literary skills but poor numeracy skills and low self-esteem.
You have developed a personality disorder in response to being exposed to adverse developmental factors during your psycho-sexual development.
These were appropriate matters to take into account, and there was a proper basis for them in the material put before the Judge. Nevertheless, the other considerations to which I have referred earlier were also important.
In my opinion, the appellant has made good the submission that the Judge did fail to take into account relevant matters. In particular, the implications of his youth; the significance of the appellant having directed the return of the stolen property to the 15 year old boy; and the fact that he had, even before being sentenced, had the experience of imprisonment in an adult prison. In these circumstances, I am satisfied that the exercise of the sentencing discretion has miscarried, and that this Court should revisit the sentence.
The Reduction for the Early Plea of Guilty
The appellant first indicated his plea of guilty to the aggravated robbery offence at the time of his committal on 19 February 2010. In practical terms, this was the earliest at which the plea could have been indicated.
The early indication of a guilty plea was important. It reinforced the indication that the appellant recognised the wrongness of his conduct, originally evidenced by the return of the stolen property to the 15 year old boy.
Secondly, the early guilty plea was consistent with a full acceptance by the appellant of responsibility for his own conduct. As was pointed out during the hearing of the appeal, the content of some of the prosecution witness statements may have allowed the appellant to minimise his own involvement and responsibility in the aggravated robbery at the expense of his co‑offenders. To his credit, he did not attempt to do so and he accepted that he was equally complicit in the offending.
The appellant’s early plea of guilty was also a practical expression of his contrition and a positive indicator that rehabilitation may be possible. It, together with the acceptance of responsibility for his own conduct, suggested that the statements made by the appellant to Mr Balfour, the psychologist, shortly before being sentenced were genuine. Those statements indicated that the appellant had some insight into the effect of his behaviour upon the victim and upon the general public, and was genuinely sorry for what he had done.
The extent of the reduction for the appellant’s plea of guilty was of course a matter of discretionary judgment by the sentencing Judge. This Court is slow to interfere with the exercise of such a discretion. It will do so only if one of the well recognised grounds for interfering with a discretionary judgment discussed in House v The King[11] are established.
[11] (1936) 55 CLR 499.
In the present case, the Judge could have considered that the entry of the plea of guilty was no more than a recognition of what was inevitable, namely, that if the appellant did contest the charge he would be found guilty. Nevertheless, in the particular circumstances of this case, that consideration cannot explain the Judge allowing a reduction of “about 10%” only. I consider that the appellant’s early intimation of a plea of guilty, coupled with his prompt return to the victim of the stolen property and his acceptance of full responsibility for his own conduct were significant matters. They were practical expressions of the appellant’s remorse and contrition and of his willingness to facilitate the course of justice.
The early entry of a guilty plea, when such a plea is to be made, is to be encouraged. This policy of the law will not be achieved if those entering early pleas receive the same reduction in sentence as do those who enter pleas at or shortly before the commencement of their trial.
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.
DAVID J: I agree that the appeal should be allowed for the reasons given by White J. I agree with his orders also.
PEEK J. I agree that the appeal should be allowed for the reasons given by White J and I agree with the orders proposed by His Honour.