R v Shaw - [2004] SASC 236

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SHAW
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice White)
21 June 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - whether sentence manifestly excessive - whether the Judge erred in imposing the same sentence as that imposed on co-offender - appeal allowed.
Criminal Law Consolidation Act 1935 (SA) s 169(2), referred to.

R v SHAW
[2004] SASC 236
Court of Criminal Appeal: Doyle CJ, Perry and White JJ

DOYLE CJ This is an appeal against sentence. The appellant pleaded guilty in the District Court to a charge of aggravated serious criminal trespass in a non-residential building contrary to s169(2) of the Criminal Law Consolidation Act 1935 (SA). This offence attracts a maximum penalty of imprisonment for 20 years.
The Judge sentenced the appellant to imprisonment for two years and six months and fixed a non-parole period of one year three months. The Judge suspended the sentence upon the appellant entering into a bond to be of good behaviour for two years, with a condition for community service and requiring supervision by a correctional services officer.
The offence was committed by the appellant with his older brother Dwayne Shaw, who is 24 years old and with a Mr Pickering, whom I gather was a friend of Dwayne Shaw and about the same age.
In the early hours of the morning Dwayne Shaw and Mr Pickering entered a bakery at Glenelg through a door that was open or unsecured, because someone else had broken into the premises earlier that night. The appellant waited outside. He warned the other two when he heard police cars approaching, however he was dealt with on the basis that there had been no agreement that he would do this.
It was accepted before the District Court that this was a spur of the moment offence all round. It was also accepted that Robert Shaw played the lesser part and that he simply went along with what his brother and Mr Pickering were doing and as I said, he did not agree in advance to keep watch. His plea of guilty was entered on the basis that he simply alerted the other two to the impending arrival of the police.
No other person was in the premises at the time. The circumstance of aggravation was the involvement of more than one person in the offence. I understand that the offenders did little or no damage to the premises and that nothing or nothing of any significance was taken.
Nevertheless, the offence is a serious one and it is a class of offence that causes a lot of community concern. The owners of the premises would be understandably angry at the thought that these three men would take advantage of the owner’s misfortune in having the door to the premises forced earlier in the night. However, it is a mitigating circumstance that the offence was not planned, involved no loss or no significant loss to the owners and that the appellant played a quite minor role in the whole thing.
The Judge sentenced Dwayne Shaw to imprisonment for two years six months and fixed a non-parole period of 18 months. She suspended the sentence upon him entering into a bond. The sentence had been reduced by one sixth for his plea of guilty. He had a poor record.
The Judge sentenced Mr Pickering to imprisonment for two years six months and fixed a non-parole period of one year three months. That sentence also was suspended. The reduction in his plea of guilty was, for reasons indicated by the Judge, in her own words “minimal”. The lesser starting point in his case presumably reflects the fact that his record was not as poor as that of Dwayne Shaw.
The reduction for the appellant’s plea of guilty was also minimal. His record was not as bad as his brother’s record. I have already mentioned that he played the lesser part in the offence. I add here that he was 21 years of age and lived at home with his parents.
The psychologist’s report was to the effect that the appellant was of limited intelligence, described as borderline and at best, at about the eighth percentile. His verbal and non-verbal ability were about equal to a 10 year old. He had a history of drug abuse. It is likely, as I think the Judge accepted, that he participated in the offence due to the influence of his older companions and his older brother in particular.
The issue is whether, in the light of these circumstances the Judge erred in imposing the same sentence as that imposed on Mr Pickering. There is also an issue of whether, viewing the matter as a whole, the sentence is too heavy. I refer here in particular to the opportunistic nature of the offence, to the appellant’s lesser role in it, to his age and to his intellectual limitations.
I consider that the combined effect of the matters referred to did require a lesser sentence than that imposed, and a lesser sentence than that imposed on Mr Pickering.
I would allow the appeal, set aside the sentence and substitute a sentence of imprisonment for 18 months, and fix a non-parole period of nine months. I would suspend the sentence upon the appellant entering into a bond for a period of 12 months in an amount of $200 with a condition, the same as that imposed by the Judge, that in that period he perform 100 hours of community service and that he be under the supervision of a community corrections officer for that period of 12 months, and that he obey the directions of that community corrections officer with respect to his place of residence and as to any drug or alcohol counselling.
The alteration to the sentence imposed by the Judge is not great in absolute terms but is significant as a proportion of the sentence imposed. The reduction should be made, I consider, to reflect the matters referred to by me and in particular to differentiate adequately between the circumstances of the appellant and the other two, and between his involvement in the offence and that of the other two. For those reasons I would allow the appeal and make the orders indicated.
PERRY J I agree.
WHITE J I agree with the orders proposed by the Chief Justice and with his reasons for those orders.
DOYLE CJ The orders of the Court are:
1.That the appeal be allowed.
2.That the sentence imposed by the District Court be set aside.
3.That there be substituted a sentence of imprisonment for 18 months
4.In relation to that head sentence that there be fixed a non-parole period of nine months.
5.That the sentence of imprisonment be suspended upon Mr Shaw entering into a bond for a period of one year or 12 months in the sum of $200, with conditions that he be of good behaviour; that he be under the supervision of a community corrections officer for that period of 12 months; that he perform 100 hours of community service during that period; that he report within two working days of entering into the bond at the offices of the Department of Correctional Services at 8 Gaelic Avenue, Holden Hill, telephone 8406 3850 and, further, that he obey the directions of his community corrections officer with respect to his place of residence and with respect to drug and alcohol counselling.
To make that clear, I will direct further that the period of the bond be a period of 12 months from the date of the original bond which was 20 February 2004.