R v SCOTT

[2014] SASCFC 131

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SCOTT

[2014] SASCFC 131

Judgment of The Full Court

(The Honourable Justice Blue, The Honourable Justice Nicholson and The Honourable Justice Bampton)

21 November 2014

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - REFORMATION AND REHABILITATION

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES

Appeal against sentence.

The appellant pleaded guilty to one count of aggravated robbery. On 24 September 2013, at around 1.00 am, the appellant and two co-offenders stole $275 and four packets of cigarettes. One of the co-offenders lunged at the attendant with a knife causing a 4 centimetre cut. The appellant was arrested later that day and admitted his involvement upon being shown CCTV still pictures. He had drunk a large quantity of wine, some cannabis and taken a sleeping tablet. At the time of the offence, the appellant was 19 years old.

The appellant appeals, by permission, against his sentence of imprisonment for 4 years and 11 months with a non-parole period of 2 years on three grounds: the sentence was manifestly excessive; the sentencing Judge erred in concluding that the appellant's prospects of rehabilitation were not good; and the sentencing Judge erred in failing to suspend the term of imprisonment.

Held by Blue J (Nicholson and Bampton JJ agreeing) allowing the appeal:

1. The sentencing Judge erred in adopting a starting point of 7 years imprisonment and assessing the appellant's rehabilitation prospects as "not good" because it did not reflect the appellant's youth and his prospects for rehabilitation (at [23]).

2. Sentence set aside. The appellant resentenced to a term of imprisonment of 3 years and 4 months (based on a starting point of 5 years) with a non-parole period of 1 year and 3 months commencing on 26 March 2014 (at [25]-[26]).

3. In the circumstances, there is not "good reason" to suspend the term of imprisonment (at [30]).

4. Appeal allowed (at [31]).

Criminal Law Consolidation Act 1935 (SA) s 137; Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 18A, s 38; Young Offenders Act 1993 (SA) s3, s 23, referred to.
R v Blackmore [2004] SASC 298; (2004) 235 LSJS 272; R v Lumsden [2000] SASC 49; R v Place [2002] SASC 101; (2002) 81 SASR 395; R v Weetra [2006] SASC 275, discussed.
R v Creed (1985) 37 SASR 566; R v Miller [2000] SASC 16; 76 SASR 151; R v Weaver (1973) 6 SASR 265, considered.

R v SCOTT
[2014] SASCFC 131

Court of Criminal Appeal:       Blue, Nicholson and Bampton JJ

BLUE J:

1. This is an appeal, by permission, against sentence. 

2. The appellant pleaded guilty in the Magistrates Court to one count of aggravated robbery[1] and was committed for sentence to the District Court.  The offence was aggravated because it was committed in company and by the use of an offensive weapon. The appellant was sentenced to imprisonment for 4 years and 11 months with a non-parole period of 2 years.

   [1]    Criminal Law Consolidation Act 1935 (SA) s 137(1).

3. The appellant appeals against the sentence on three grounds:

   1.the sentence was manifestly excessive;

   2.the sentencing Judge erred in concluding that the appellant’s prospects of rehabilitation were not good; and

   3.the sentencing Judge erred in failing to suspend the term of imprisonment.

   Factual circumstances

4. On 24 September 2013 at about 1.00 am, the appellant and a co-offender, A, entered a service station at Mount Barker and demanded money while another co-offender, C, kept a lookout outside. A was carrying a knife. A lunged at the attendant with the knife, the attendant put up his left arm in protection and the knife cut his wrist. The attendant’s hand suffered a 4 centimetre cut. The appellant was sentenced on the basis that he was aware that A was carrying a knife but did not know that A intended to use it. Four packets of cigarettes and $275 were stolen.

5. The appellant was arrested later that day. He said that he could not remember much of what happened but, on seeing CCTV still pictures, admitted that he was one of the offenders. He had drunk a large quantity of wine that night, consumed some cannabis and taken a sleeping tablet. During the police interview on the day of the appellant’s arrest, he expressed remorse for his conduct and a determination to stop drinking alcohol.

6. The appellant was born in September 1994 and had just turned 19 by the date of the offence. The appellant had one prior relevant appearance in the Mount Barker Children’s Court.  In January 2010, he was convicted of aggravated assault committed in September 2009 when he was aged 15.  The appellant and another chased the victim who was aged 20 and threw a traffic cone at him, striking him on the back. The victim had earlier, allegedly, attacked the appellant’s brother. The appellant was also convicted of theft and malicious damage of property committed while under the influence of alcohol and failure to comply with four bail agreements. He was sentenced to detention for 4 months suspended upon his entry into a bond to be of good behaviour for 10 months with supervision. He did not breach the terms of the bond.

7. The appellant’s parents separated when he was two years old and he was raised by his mother. When he was 16 years old, his mother was forced to seek accommodation with friends and the appellant was obliged to move in with his girlfriend at her parents’ house, where he continued to reside until he was remanded in custody on 26 March 2014. The appellant left school and worked harvesting fruit and vegetables. He suffered a work injury to his index finger which prevented his continuing that employment. In mid-2013, he completed a Certificate II in horticulture.

8. After the appellant’s arrest on 24 September 2013, he was released from custody on 4 October 2013 on home detention bail. He stopped using alcohol and drugs. In December 2013, while on home detention he completed a Certificate III in logistics to qualify him to work in a warehouse. He sought employment in logistics but was unsuccessful.

9. Ms Richardson, a youth worker at Employment Options in the Youth Connections Program, provided a report which was given to the sentencing Judge after the sentencing submissions on 26 March 2014. Ms Richardson had been seeing the appellant on average once a fortnight since July 2013. She initially identified a number of barriers to his re-engaging with education and the workforce, including low literacy and numeracy skills, alcohol and drug misuse, history of abuse, and financial distress. She encouraged him to complete the Certificate III course in logistics and to seek employment. Her observations of his character were always positive.  He attended appointments regularly, was polite and was always willing to address his barriers to achieve a better future for himself. He had a reputation for being a cheerful and pleasant person and had demonstrated great progress and potential in the program. His trainer considered him to be a very good student who completed his work without issue. Ms Richardson considered that the appellant’s actions were out of character and that he had shown sincere regret for his actions. She believed that he had great potential to be integrated back into society as a respectful and law-abiding citizen.

10. The appellant expressed regret for his actions through his counsel. It was said that he had the support of his family and friends as to his rehabilitation.

11. The appellant’s co-offender A was almost 18 at the time of the robbery. In March 2014, he was sentenced for the offence of aggravated robbery, together with an offence of driving without due care, to detention for 8 months with an order that he be released after serving 1 month upon entering into an obligation to be of good behaviour and to be under supervision.

12. The appellant’s other co-offender C was also under 18 at the time of the robbery. In February 2014, he was sentenced for the offence of aggravated robbery, together with a number of other offences, to detention for 4 months which was wholly suspended upon his entry into an obligation to be of good behaviour for 9 months.

    Sentencing remarks

13. The appellant was sentenced on 30 April 2014. The sentencing Judge referred to the circumstances of the offending and to the appellant’s antecedents. He then said:

    Alcohol abuse has been a real problem in your life and whilst on home detention bail you have been off alcohol and drugs. You have said you are determined not to use alcohol again and have enrolled for counselling on 2 June.

    Recently I have received a letter from an organisation known as Employment Options as part of the Youth Corrections program. You have been seeing a psychologist or youth worker from that organisation since July 2011. You have made positive efforts to re-engage with education and strategies to improve your work prospects.

    As you would well know by now, this is a very serious offence. There were three of you and one of the others had a knife. Not only do you need to be deterred, others who might be inclined to do the same thing, also need to be deterred. Service stations, particularly at night and into the early morning, are soft targets. They have little security and there are not many people around, if any.

    Your prospects of rehabilitation are not good. You have made some progress in recent times, but you have previously been granted leniency and not taken full advantage of it. Obviously there must be a sentence of imprisonment but the question is whether there is good reason to suspend that sentence.

    Your youth is clearly a factor which favours leniency in sentence and whether the sentence should be suspended. In the end I have taken the view that your offending is too serious to warrant suspension of the sentence.

14. The Judge adopted a starting point of imprisonment for 7 years which he reduced by 30 per cent to 4 years and 11 months on account of the appellant’s plea of guilty. He fixed a non-parole period of 2 years. The sentence and non-parole period commenced on 26 March 2014, the date when the Judge remanded the appellant in custody.

    Manifestly excessive and prospects of rehabilitation

15. The appellant contends that the starting point of imprisonment for 7 years was manifestly excessive. The appellant makes a subsidiary contention that the Judge erred in concluding that the appellant’s prospects of rehabilitation were not good.

16. The maximum penalty for aggravated robbery is imprisonment for life. In R v Place,[2] this Court heard an appeal against sentence by an appellant who had pleaded guilty to 6 offences of armed robbery committed over a period of 3 weeks. The appellant had been sentenced to imprisonment for 11 years and 6 months, reduced from 12 years for time spent in custody and on home detention bail. A non-parole period of 7 years and 6 months was fixed. Doyle CJ, Prior, Lander and Martin JJ (Gray J agreeing) examined sentencing standards for armed robberies in South Australia and concluded:

    This Court has said on a number of occasions that armed robbery on premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects that appear to be weapons are used to threaten the immediate victims are prevalent crimes committed against vulnerable victims and are crimes in respect of which general deterrence and the protection of the public are of particular importance.  This Court has emphasised that such crimes of armed robbery are frequently committed by persons addicted to and affected by alcohol or other drugs who commit the crimes in order to obtain funds to meet their addiction.  For these underlying reasons, this Court has said that, generally speaking, the standard of penalty appropriate for those types of armed robberies committed by those types of offenders is in the order of six to eight years imprisonment… 

    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.[3]

    [2] [2002] SASC 101; (2002) 81 SASR 395.

    [3] Ibid at [100], [101].

17. In R v Place it was, and in many subsequent decisions of this Court it has been, emphasised that the figure of imprisonment for 6 to 8 years is only a broad guide. There are cases in which a sentence of imprisonment for less than 6 years is appropriate, just as there are cases in which a sentence of more than 8 years is appropriate, depending on the circumstances of the offence and the offender.

18. When an offender is less than 18 years old at the time of the offence, the sentencing regime under the Young Offenders Act 1993 (SA) applies. This includes the statutory policies contained in section 3 and the limitations on the power to impose a custodial sentence contained in section 23 when sentenced in the Youth Court. The sentencing regime for youths under the Young Offenders Act cannot be directly compared with the sentencing regime for adults under the Criminal Law (Sentencing) Act 1988 (SA). Parity issues do not arise between a sentence imposed on an adult and a sentence imposed on a youth who are involved in joint offending. Accordingly, it is inappropriate to compare the appellant’s sentence with the much lower periods of detention to which A and C were sentenced. Nevertheless, the emphasis given to rehabilitation does not cease to have any effect merely because a youth has turned 18 and is to be sentenced as an adult.

19. It was well established that whenever a young adult is before the court, particularly upon a first appearance as an adult, rehabilitation should be a prominent consideration in fixing the sentence.[4]

    [4]    R v Weaver (1973) 6 SASR 265 at 267 per Bray CJ, Mitchell and Sangster JJ.

20. In R v Blackmore,[5] the appellant, who was 18 years old, committed two bank robberies and one attempted bank robbery, stealing a total of approximately $16,000. He was unarmed but on the occasion of the second robbery conveyed the impression of having a weapon and made a threat to use it. He was sentenced to imprisonment for 3 years with a non-parole period of 18 months under section 18A of the Criminal Law (Sentencing) Act. This Court allowed an appeal by the Crown on the ground that the sentence was manifestly inadequate. It treated the three offences as involving two separate incursions into criminal offending and thereby allowed a level of concurrency between one of the robberies and the attempt. The Court substituted a sentence of imprisonment for 6 years under section 18A of the Criminal Law (Sentencing) Act, based on a notional sentence of 3 years for each incursion to be served cumulatively, with a non-parole period of 27 months. White J (Doyle CJ and Perry J agreeing) said that it was appropriate to adopt a starting point for each incursion (before a discount for the guilty pleas) of imprisonment for 4 years, which was at the lower end of the range in light of the fact that it was a Crown appeal. The Court had regard to the appellant’s age and his prospects for rehabilitation in adopting the starting point of imprisonment for 4 years on each incursion.

    [5] [2004] SASC 298; (2004) 235 LSJS 272.

21. In the present case, the sentencing Judge adopted a starting point of imprisonment for 7 years. The Judge said that the appellant had previously been granted leniency and not taken full advantage of it. The Judge characterised the appellant’s prospects of rehabilitation as “not good”. The appellant complains on appeal that the Judge erred in his assessment of the appellant’s prospects of rehabilitation.

22. The Judge’s reference to the appellant having previously been granted leniency was evidently a reference to the sentence imposed by the Mount Barker Children’s Court in January 2010 of detention for 4 months which was suspended upon the appellant entering into a bond to be of good behaviour for 10 months. There was no suggestion by the prosecution on the sentencing submissions that the appellant breached that bond. Nor was there any suggestion by the prosecution that the appellant breached the terms of his home detention bail over the 6 months from September 2013 to March 2014.

23. The appellant had expressed remorse when arrested on the day of the offence, to Ms Richardson as set out in her report and to the Court through his counsel. He had undertaken and completed the Certificate III in logistics and been seeking employment since his arrest in September 2013. He had ceased using alcohol or drugs since his arrest. He had the support of his family and friends. Ms Richardson had been seeing him fortnightly since his arrest and provided a very positive report in relation to his prospects of rehabilitation. These matters suggest that the appellant’s prospects of rehabilitation were relatively good. In the circumstances, and whether or not the sentence is to be regarded as manifestly excessive, the sentencing Judge erred in assessing his rehabilitation prospects as “not good”. The sentence imposed by the sentencing Judge did not reflect an adequate consideration of the appellant’s youth and his prospects of rehabilitation. Therefore, the Judge’s sentencing discretion miscarried and it is appropriate for this Court to exercise the discretion afresh.

    Re-sentencing

24. The circumstances of the offending were serious and call for the imposition of a substantial term of imprisonment. However, in determining the appropriate head sentence, it is important to take into account the appellant’s youth, the relatively spontaneous nature of the offending, the agreed basis on which the appellant was to be sentenced, his prospects of rehabilitation and the importance of rehabilitation given his relative youth.

25. In the circumstances, an appropriate starting point is a sentence of imprisonment for 5 years, which I would reduce by 30 per cent[6] to 3 years and 6 months on account of the guilty plea. I would reduce that term to 3 years and 3 months on account of time spent on home detention bail and the 10 days in custody prior to the appelllant being released on home detention bail.

    [6] The maximum available in accordance with s 10C(2)(b) of the Criminal Law (Sentencing) Act 1988 (SA).

26. In setting a non-parole period, I bear in mind the non-parole period as much as the head sentence “must reflect the basic consideration of justice that the punishment should fit the crime”.[7] Bearing this in mind, in fixing a non-parole period, greater weight can be given to rehabilitation.[8]  Taking into account that the offending was precipitated by the defendant’s consumption of a large amount of alcohol and some drugs, in circumstances in which he ceased to use alcohol and drugs after his arrest and the other changes he has made to his lifestyle since his arrest, it is appropriate to set a lower than usual non-parole period. Given the defendants personal circumstances, I would fix a non-parole period of 15 months.

    [7]    R v Creed (1985) 37 SASR 566 at 568 per King CJ (Cox and Olsson JJ agreeing).

    [8]    R v Miller [2000] SASC 16; 76 SASR 151, 160 [42] per Doyle CJ.

27. The appellant contends that there is “good reason” within the meaning of section 38(1) of the Criminal Law Sentencing Act to suspend the sentence. It is well established that suspension of a sentence of imprisonment imposed for armed robbery (including aggravated robbery involving use of a weapon) will rarely be justified.

1. In R v Weetra,[9] this Court adopted the observations of Martin J in R v Lumsden:[10]

   In considering whether it is appropriate to suspend the sentence, the Court must balance a number of interests to which I have referred against the possibility that suspending the sentence would send a wrong signal to persons who are tempted to commit serious crimes and, in particular, crimes of armed robbery... Suspension of a sentence of imprisonment imposed for armed robbery is justified only in exceptional circumstances. Ordinarily, factors such as a guilty plea, contrition, youth, addiction to drugs and prospects of rehabilitation, even in combination, would not amount to exceptional circumstances justifying suspension of the sentence. Those factors are, unfortunately, commonly present in matters of armed robbery that come before the criminal courts.

   [9] [2006] SASC 275 at [23] per David J (Duggan and Sulan JJ agreeing).

   [10] [2000] SASC 49 at [26] (citations omitted).

2. The reference to “exceptional circumstances” is not intended to be a gloss on or to alter the statutory test – “good reason”.  It expresses an expectation that, ordinarily, this type of offence is so serious and the need to deter others, of such importance that something out of the ordinary by way of personal considerations will be needed before a finding of good reason will be made.

3. In the light of these considerations, I am unable to find good reason to suspend in this case.

   Conclusion

4. I allow the appeal. I set aside the sentence imposed by the Judge. I re-sentence the appellant to a term of imprisonment of 3 years and 3 months, with a non-parole period of 1 year and 3 months, with both to commence on 26 March 2014.

5. NICHOLSON J:   I agree with Blue J.

6. BAMPTON J:      I agree that the appeal should be allowed and with the reasons of and orders proposed by Blue J.