R v Smith
[2003] SASC 263
•14 August 2003
R v SMITH
[2003] SASC 263Court of Criminal Appeal: Debelle, Lander and Gray JJ
DEBELLE J The facts are recited in the reasons of Lander J. I agree with the substance of His Honour’s reasons.
The offending of this appellant was extremely serious, even for crimes of armed robbery. I note some features of the offending.
•The appellant committed two serious armed robberies in the space of six weeks and committed the third a year later.
•In each case, a stolen motor vehicle was used.
•In each case, the appellant was armed with a rifle.
•The appellant was obviously willing to shoot. On two occasions he fired shots. In the case of the robbery at Myrtle Bank he deliberately aimed at each victim and each victim suffered serious injury. Both victims have residual disabilities, mental and physical, resulting from the shooting.
•At the robbery at Torrensville cash, as well as safe custody boxes containing cash, bullion and jewellery worth more than $180,000 were taken. Some only of the stolen items have been recovered.
•The victims of these separate offences have suffered a great deal of distress and anxiety. The effects have been profound and continue.
The gravity of this offending is accentuated by the fact that the first armed robbery at Walkerville occurred within six months of a sentence ordered on 10 September 1998 when the appellant was sentenced for the crime of armed robbery committed as a youth. He was sentenced to detention and that period of detention was suspended upon him entering into a bond to be of good behaviour.
The sentencing judge fairly described the appellant’s record of offending as “disturbing”. The appellant has a number of previous convictions. It is necessary to note only the two most serious of them. In 1995, when 15 years old, the appellant committed an armed robbery with another youth. They held up a delicatessen proprietor. At the time, they were wearing balaclavas and wielding rifles. A shot was fired during the robbery. The appellant was ordered to serve 12 months’ detention.
The second of those convictions was another armed robbery committed on 8 October 1997 upon staff at the Hindmarsh Post Office. The appellant committed the robbery with others. They were masked and one or more firearms were carried. Again, a shot was fired. The appellant was sentenced as a child. The sentencing judge determined to give the appellant the last opportunity to put his life in order. He sentenced the appellant to a suspended period of detention of one year and eight months with a good behaviour bond of two years. That was the sentence on 10 September 1998 mentioned above.
Less than five months later, the appellant committed the armed robbery at Walkerville.
The appellant is an Aboriginal. He is obviously quite intelligent. He has achieved at school. He also has succeeded at a number of sports, achieving some success as a swimmer. While he has been in custody he has been studying for a tertiary qualification in accountancy. However, notwithstanding his obvious intelligence, he has learned nothing from his previous offending or from the leniency extended to him. He has no problems with either drugs or alcohol. However, his parents have had problems at different times with both drugs and alcohol. His father has a long history of criminal behaviour. The appellant has misguidedly been influenced by his father’s behaviour and has wrongly formed the view that he will gain some respect in the Aboriginal community by his offending.
The appellant has suffered many difficulties in the past and especially from having to grow up in a dysfunctional family. His offending cannot, however, be explained by the difficulties he has encountered nor by the fact that he is an Aboriginal living in an urban area. Whilst these difficulties must be recognised and might explain less serious forms of offending, they do not account for the gravity of these crimes. These are very grave crimes. There was obviously some degree of planning for at least the robberies at Walkerville and at Torrensville. Each armed robbery is at the highest end of seriousness, especially the armed robbery at Myrtle Bank with its gratuitous acts of violence.
The appellant had in 1998 expressed willingness to reform. His subsequent conduct indicates that he either has no ability to reform or that he did not mean what he then said. The former is more likely but, whatever the position, there is no realistic prospect of rehabilitation. Although he might be very intelligent and have the capacity to gain tertiary qualifications, it is apparent that the appellant lacks the capacity to reform his conduct or is not willing to do so. His sentencing judge referred to the existence of “some promising signs” for rehabilitation on the appellant’s part but concluded by stating that she could not see anything particularly outstanding in his prospects for rehabilitation. The apparent inconsistency disappears when the appellant’s background is understood.
It is a very grave thing to sentence a young man aged 22 for such a long period of imprisonment. At this age, one would not, in the ordinary course, discount prospects for rehabilitation. However, the appellant’s offending is so grave and his prospects for rehabilitation so slim that, in all the circumstances, I do not believe that it is proper to interfere with the sentence. The sentence is higher than I would have ordered but that is not the appropriate test. The question is whether the sentence is manifestly excessive. For these reasons, I do not think it is. I would dismiss the appeal.
LANDER J This is an appeal by leave of a Judge of this Court against sentence imposed in the District Court on 13 February 2003.
The appellant was charged on three separate informations with four counts of armed robbery, four counts of endangering life, four counts of creating risk of bodily harm, two counts of illegal use of a motor vehicle, one count of being unlawfully on premises, three counts of attempted murder, one count of using a motor vehicle without the consent of the owner, and three counts of causing grievous bodily harm with intent to do grievous bodily harm.
The offending was alleged to have occurred during four separate incidents, but the Director Of Public Prosecutions accepted, in satisfaction of the informations, pleas related to only three incidents.
The first information, dated 14 January 2002, related to offences committed in Walkerville on 7 February 1999 (the Walkerville offences). The appellant, in company with another person, stole a vehicle from Port Road, Hindmarsh in the early hours of 7 February. The car was driven by the appellant and his companion to the Buckingham Arms Hotel in Walkerville. The appellant and his companion gained access to the hotel, which had closed, after the appellant smashed an outer glass door with a hammer. Several staff were present and retreated to the gaming room office, the door to which featured a reinforced glass panel. Access to this office was achieved by one of the intruders discharging a firearm into the glass panel.
There was a disputed facts hearing to determine whether it was the appellant or his companion who fired the shot. The sentencing Judge indicated that she was prepared to find beyond reasonable doubt that it was the appellant who fired the shot.
Hotel staff were present in the gaming room office when the shot was fired into the door, and this conduct gave rise to the four counts of endangering life and four counts of creating risk of bodily harm contained in the first information.
The appellant threatened the Hotel staff with the rifle, demanding that they open the safe. Approximately $22,000 was removed from the safe.
The alarm had been activated, and as police were attending at the hotel, the appellant and his companion fled and hid in a nearby house. They left the money behind.
On 11 October 2002 the appellant pleaded guilty to illegal use of a motor vehicle and to being unlawfully on the premises of the nearby house but pleaded not guilty to the other charges. The trial proceeded in the District Court in respect of the other counts, but on 14 October 2002 the appellant pleaded guilty to 1 count of armed robbery and 4 counts of creating risk of bodily harm in satisfaction of the remainder of the information.
The appellant was arrested in respect of the Walkerville offences and was held in custody, but on 2 March 1999 he escaped whilst being escorted to visit his father in hospital.
The second information, also dated 14 January 2002, related to offences which allegedly occurred on 8th and 12th March 1999, approximately 1 week after the escape.
A nolle prosequi was entered in respect of the first four counts which related to matters on 8 March. Those four counts can be ignored. The fifth count on the information was a charge of armed robbery on the ANZ bank at Torrensville on 12 March 1999, (the Torrensville offence).
The appellant committed the robbery in the company of two other men. They had gained entry to the bank, which had just closed, by bashing the back door with a sledge hammer. One of the intruders was carrying a firearm.
Employees of the bank were threatened and one employee was injured after being hit in the head by one of the armed robbers. The offenders escaped with cash, jewellery and other items to the value of $184,000.
On 15 October 2002, the appellant pleaded guilty to the Torrensville offence.
The last group of offences occurred on 1 February 2000 in Ferguson Avenue at Myrtle Bank (the Myrtle Bank offences). The appellant accosted a man (“V1”) who was returning to his car from the State Bank on Fullarton Road. V1 had just banked approximately $7000 on behalf of his employer and was in possession of a bag containing $102 in coins. The appellant demanded that V1 hand over the bag of coins and pointed a firearm at V1’s torso. V1 told the appellant to “fuck off”, whereupon he was shot, and the money stolen.
A passing motorist (“V2”) followed the appellant who was fleeing on foot. V2 stopped his vehicle so as to attempt to impede the appellant’s escape. The appellant fired a shot through the window of the car, entered the car and demanded that V2 get out. There was a struggle and the firearm discharged a second time. The appellant completed his escape in the car.
Both V1 and V2 suffered very serious injuries as a result of gun shot wounds. V1 suffered a gun shot wound to the back, and V2 suffered a gun shot wound to the left side of his chest. This injury apparently occurred as a result of the first shot being fired through the window of the vehicle.
On 15 October 2002 the appellant pleaded guilty to two counts of causing grievous bodily harm with intent to cause grievous bodily harm, one count of armed robbery, and one count of using a motor vehicle without the consent of the owner. These pleas were accepted in full satisfaction of the information.
There were, therefore, three separate groups of offences to which the appellant pleaded guilty and in respect of which he was sentenced.
Her Honour said, in imposing sentence:
“Such is the seriousness of the Buckingham Arms offences and the associated illegal use and unlawfully on premises offences, that I regard a single sentence of 12 years imprisonment as appropriate. I impose that sentence. Were it not for your youth at the time and, to a lesser extent, your pleas of guilty, the sentence would have been more like 15 years.
In relation to the Torrensville offence I impose a sentence of seven and a half years imprisonment. Again, but for your plea of guilty and your youth, the term would have been of the order of 10 years.
In relation to the four Myrtle Bank offences I would regard as an appropriate starting point a single sentence of 24 years. However, in view of your pleas of guilty I in fact impose a sentence of 18 years.”
Because she believed that a sentence of thirty seven and a half years would be crushing and to reflect the totality principle, the sentencing judge ordered that the seven and a half year sentence be served concurrently with the 18 year sentence. However, she made an order that these sentences be served cumulatively upon the 12 year sentence. A head sentence of 30 years was therefore imposed. The non parole period was fixed at 18 years.
The appellant had been previously sentenced in respect of his March 1999 escape to a head sentence of 12 months imprisonment with a non parole period of 9 months. The non parole period in respect of that sentence would have expired on 15 November 2000. The sentence imposed by the sentencing Judge on 13 February of this year was back-dated to 15 November 2000.
The appellant now appeals against the sentence upon the following grounds:
“1.The head sentence and the non-parole period were as a whole, and/or individually, manifestly excessive.
2.The Learned Sentencing Judge erred in failing to identify adequately the sentence reduction made on account of the pleas of guilty with respect to each of the three groups of offences (sentencing remarks page 13, paragraphs 4, 5 & 6)
3.The Learned Sentencing Judge erred in failing to take into account sufficiently the various reports submitted by the appellant in relation to the appellant’s personal circumstances, particularly the influences operating upon him which arise from his background as an urban aboriginal person.
4.The Learned Sentencing Judge erred in failing to apply properly the totality principle in that having identified that 37.5 years imprisonment would be a crushing sentence, Her Honour should have recognised that 30 years imprisonment was also crushing.
5.The Learned Sentencing Judge erred in failing to give adequate effect to the finding that there were “some promising signs” for the appellant (sentencing remarks page 11 paragraph 1) and later saying “I see nothing particularly outstanding in your prospects of rehabilitation” (sentencing remarks page 14 paragraph 2).”
Leave was refused on a further ground of appeal.
It would be convenient to commence with a consideration of the second ground of appeal in which it is complained that the learned sentencing judge erred in failing to identify adequately the sentence reduction made on account of the pleas of guilty with respect to each of the three groups of offences.
It is curious that in respect of the first two groups of offences, a single reduction is made on account of two separate mitigating factors, those being youth and the pleas of guilty, but for the Myrtle Bank offences the discount is expressed as being only for the guilty pleas.
In my opinion, the omission of a reference to “youth” in fixing the reduction in sentence for the third group of offences was a slip on the part of the learned sentencing Judge. The discount for the first group of offences amounts to 20 per cent, for the second, 25 per cent and for the third, 25 per cent. I am satisfied that the sentencing Judge had regard to the same factors in fixing the appropriate reduction for each of the three groups of offences. The sentencing Judge did not deliberately ignore youth when fixing the reduction for the third group of offences.
It may be assumed that the lesser discount for the Buckingham Arms offences partially reflects the fact that the guilty pleas in respect of five of the eleven counts were entered after the commencement of the trial, although shortly after. The late guilty pleas came after the prosecution had opened, evidence had commenced and a view had been taken of the scene of the crime. The sentencing Judge noted that less credit was given to the appellant for his guilty pleas in respect of the Buckingham Arms offences.
The appellant complains, however, that the sentencing Judge erred in failing to specify the particular discounts ascribed to the guilty pleas, independently of any impact of the appellant’s youth on the exercise of the sentencing discretion.
It is now well established that South Australian Courts should identify the specific reduction given in respect of a plea of guilty, because to do so encourages guilty persons to plead to the offences of which they are guilty: R v Place (2002) 81 SASR 395.
It is important that offenders understand the likely benefit that may be allowed as a result of entering a timely guilty plea: R v Harris (1992) 59 SASR 300. Moreover it is important that they know what discount has been allowed in the construction of the sentences. There is, of course, no formula which can be applied to reflect the appropriate reduction because the discount is an exercise in discretion and will necessarily vary in each case.
A guilty plea will be less cogent objective evidence of contrition and remorse if the evidence to be adduced at trial is so damning that a guilty verdict is almost inevitable. Similarly, a guilty plea entered after the commencement of the trial may not result in a significant saving to the State. In both those cases the pleas are not strong evidence of contrition or remorse.
However, in all cases where a discount has been allowed for a guilty plea sentencing judges should clearly identify the reduction being given in respect of that plea. This reduction should be identified independently of any other consideration relevant to the exercise of the sentencing discretion.
It would have been better if the sentencing Judge had not lumped together the appellant’s age and plea. It would have been better if she dealt with his age as one of the factors to be taken into account in the general exercise of her sentencing discretion.
However, in this case there is no reason to think that the sentencing Judge gave insufficient discount for the pleas. It cannot be suggested in this case, that the sentencing Judge failed to appropriately recognise the pleas. Later in the sentencing remarks, her Honour clearly indicated that she “propose[d] to give [the appellant] significant credit for the pleas on the Torrensville and Myrtle Bank offences”. Any reduction in the term of imprisonment on account of the pleas to the Walkerville offences should be regarded as generous given the fact that the pleas to the more serious offences were entered after the commencement of the trial, and, as the sentencing Judge noted in relation to those offences, in circumstances where “it is hard to see what defence [the appellant] could have mounted to the charges”.
There was other evidence before the sentencing Judge which tended to indicate a lack of contrition or remorse. The appellant had photographs taken of himself lying on a hotel bed with a large sum of money, presumably the product of one of the armed robberies, in front of him. The photographs show him holding a gun. There are further photographs of him and a friend wearing the jewellery which was also the product of the armed robberies.
Those photographs certainly establish a lack of contrition or remorse before his recapture.
In the third ground of appeal the appellant complains that the sentencing Judge erred in “failing to take into account sufficiently the various reports submitted by the appellant in relation to the appellant’s personal circumstances, particularly the influences operating upon him which arise from his background as an urban aboriginal person.”
Several reports, psychiatric, psychological and anthropological were provided to the sentencing Judge. It is not disputed that Her Honour had regard to these reports when sentencing the appellant. The complaint made relates to the weight given to those reports by the sentencing Judge.
Psychological reports from Richard Balfour and Ann Finlay note the appellant’s obsessive compulsive disorder and psychological problems associated with attempts to rescue his “dysfunctional” family. A psychiatric report from Dr Chris Branson again noted the appellant’s obsessive compulsive disorder, but confirmed that the appellant did not present with signs of depression or psychosis. The reports note the influences and stresses experienced by the appellant as a result of his family’s drug use and his father’s own criminal offending.
An anthropological report, prepared by Dr Suzi Hutchings, was tendered. It was submitted on this appeal that the sentencing Judge failed to have sufficient regard to this report and its findings.
The report claims to:
“present(s) an independent anthropological assessment of particular social, cultural and historical factors which have a bearing on the Aboriginal cultural milieu within which [the appellant] has been raised and which have impacted on his life”.
The report addresses the particular social predicament of people who have been referred to as “urban Aboriginal” people. The report links the appellant’s personal history with that of his family and their people.
A central theme in the report is the “complex rules of kinship which determine, govern and influence an individual’s fundamental roles in their society.” Dr Hutchings, at page 8 of her report, says:
“[E]nduring features of the manifestation of the spiritual linkages among Adelaide Aboriginal people with a history of connection with Point Pearce and Raukkan include the demonstration of the enactment of kinship obligations to family members foremost and then other Aboriginal people one has association with. This includes showing an awareness of the needs of other Aboriginal people most particularly family and a sense of responsibility to help fulfil those needs.”
The report goes on to deal with the impact of the appellant’s sense of obligation to, and inability to refuse the requests of, family and friends on his decisions to commit the offences for which he was sentenced, as well as other matters.
Various authorities have dealt with the general principles to be applied when sentencing Aboriginal people. In Wanganeen v Smith (1977) 73 LSJS 139, Wells J said, at 139:
“No doubt his personal characteristics and background and history will be taken into account by a Court in the ordinary way; but he cannot expect special treatment just because he is an aboriginal native, any more than he would expect that he should, on that account, receive any worse treatment if he comes before a Court.”
More recently principles were clearly stated in R v Fernando (1992) 76 A Crim R 58. In that case, Wood J said, at 62:
“(A)The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders’ membership of such a group.
(B)The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.
…
(F)That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.”
The dicta in Fernando is really a re-statement of the principle articulated in Wanganeen, that is, a person’s Aboriginal heritage is not in and of itself a mitigating factor to be taken into account when considering the circumstances of the particular offence. However, insofar as that heritage has contributed to the personal circumstances of the offender, and has contributed to the circumstances of the offending, the heritage is relevant by way of explanation of those matters. It is the matters personal to the offender and the particular circumstances of the offending which are relevant. Evidence explaining Aboriginal heritage is objective evidence in support of those personal matters which are put forward as mitigating factors particular to the person being sentenced.
In Fernando (supra), Wood J said, at 63:
“[I]n sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has had little experience of European ways, a lengthy term of imprisonment might be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.”
Wood J’s dicta is not restricted to traditional aboriginals.
In my opinion no distinction is to be drawn between an Aboriginal person to whom European culture is foreign because of a lack of exposure to that culture (i.e: a traditional Aboriginal), and an Aboriginal person to whom European culture is foreign, not because a lack of exposure to that culture, but simply as a result of that person’s identity as an Aboriginal person. Unfamiliarity with European culture and language may pose particular problems for a traditional Aboriginal person who is imprisoned. However, some Aboriginal persons who have spent the whole of their lives in an urban setting may become subject to a cultural milieu which is foreign to the majority of the prison population and vice versa. In R v Tjami (2000) 210 LSJS 309 Nyland J was dealing with a traditional aboriginal. Her comments, however, should not be seen as being limited to those persons.
The heritage of Aboriginal people raised in urban settings is relevant in explaining matters personal to the offender. Insofar as that heritage throws light on such matters, and on the circumstances of the offending, there is no rigid distinction to be made between the approach to be taken to urban Aboriginal people and those Aboriginal people often described as “tribal”. Indeed, as Dr Hutchings said at p8 of her report, when referring to the “complex rules of kinship” which influenced the appellant’s behaviour:
“[T]his cultural feature operates among Aboriginal peoples regardless of whether they live in a traditionally orientated community or in an urban location like Adelaide.”
Rules of kinship operate in Aboriginal families and their extended families but such rules of kinship, involving a sense of duty to particular persons at the expense of others, might exist within a non-aboriginal family setting. Evidence of Aboriginal heritage may establish particular influences on the offender which explain the offending and the circumstances surrounding it. But it is those particular influences which are relevant to the sentencing discretion, not the fact that the person is Aboriginal.
There is no suggestion that the psychological, psychiatric and anthropological reports were not considered by the learned sentencing Judge. Indeed that this occurred is not in dispute. Having considered the reports, Her Honour necessarily made reference to factors such as the appellant’s sense of duty to his family, his dysfunctional upbringing and other influences contributing to his offending. In relation to the anthropological report, her Honour specifically asked defence counsel to address her as to how the report should be used in sentencing the appellant. The following submissions were put:
“Dr Hutchins’ (sic) report underlines something which has been a theme in Mr Balfour’s reports from 1988 (sic) onwards and that is the influence of his dysfunctional and Aboriginal background in his development, his need to impress his father, his need to live up to the expectations of his close male relatives…”
The absence in the sentencing remarks of any specific mention of the contents of the various reports is not evidence of a failure on the part of the sentencing Judge to properly consider those various matters personal to the appellant. There was no error in her approach.
Grounds one, four and five should be considered together. The appellant is a young man and any sentence should recognise his youth, his prospects of rehabilitation and not be so severe as to be crushing.
However, they are not the only matters to be taken into account in determining the appropriate sentence. Armed robbery is a crime in respect of which general deterrence is of particular importance and the trial Judge was bound to take into account aspects of general deterrence. So also, in the appellant’s case, were matters of personal deterrence important.
Notwithstanding the appellant’s youth he has previously been apprehended and convicted for two separate counts of armed robbery.
On 16 July 1995 he came before the Childrens Court and was sentenced to 12 months detention for the offence of armed robbery.
On 10 September 1998 a Judge of the District Court sentenced the appellant pursuant to the Young Offenders Act 1993 (SA) to detention for one year and eight months for a further offence of armed robbery committed on 8 October 1997. The sentencing Judge on that account suspended the sentence of detention upon the appellant entering into a bond to be of good behaviour for a period of two years.
That sentence was imposed less than three months before the Walkerville offences.
Notwithstanding the leniency which was extended to the appellant by the District Court Judge in September 1998 the appellant re-offended.
Not only therefore has the appellant been sentenced to detention as a youth for two separate counts of armed robbery but on both occasions a gun was used.
Whilst both of those offences were committed whilst the appellant was a youth the trial Judge was obliged to give consideration to those offences and determine the appropriate sentences in relation to these matters.
During the time the appellant was held in detention whilst awaiting sentence in relation to the second offence of armed robbery for which he was sentenced on 10 September 1998 the appellant escaped on two occasions. The first escape was on 27 October 1997 from the detention centre at Magill. He was not re-arrested until 13 November 1997. The second escape occurred on 23 December 1997 when he jumped over the dock rail in the Youth Court in Adelaide and ran out of the Court complex. On that occasion he was re-arrested the next day.
The appellant’s antecedents point out the necessity for the need for personal deterrence.
It was also submitted on appeal that the sentencing Judge failed to properly apply the totality principle in that she failed to recognise that a head sentence of 30 years was crushing. This submission was linked with the ground of appeal complaining of the failure of the Judge to have proper regard to the appellant’s prospects of rehabilitation. This latter failure is said to be evidenced by the fact that, in her sentencing remarks, the sentencing Judge made findings as to the “promising signs” shown by the appellant, but then stated that she could “see nothing particularly outstanding in [his] prospects for rehabilitation”.
The “promising signs” referred to related to the appellant’s scholastic achievements whilst incarcerated, his remorse, and his stated intention of working for members of the Aboriginal community. They are promising signs. But to describe those matters as promising is not inconsistent with also concluding that there is nothing ‘particularly outstanding in (his) prospects of rehabilitation’.
The sentencing Judge had regard to the appellant’s disturbing record of offending. She weighed the gravity of those offences and that history was weighed against the promising signs which she identified before she reached a conclusion as to the appellant’s prospects of rehabilitation.
The sentencing Judge did not err in finding that there was nothing outstanding in the appellant’s prospects for rehabilitation. The finding was that there was nothing outstanding in the appellant’s prospects, not that the there were no prospects at all.
Thirty years with eighteen years non-parole is a heavy sentence to face for a man so young. However, a balance must struck between the need to adequately punish, the need to protect the community, the need to deter both generally and personally and the need to rehabilitate the offender. Seven and a half years was a reasonable reduction to reflect the totality principle.
The sentence imposed was at the higher end of the scale for an offender this young. I might have imposed a lesser sentence, but that is not the test. The sentence imposed was not manifestly excessive.
The appeal should be dismissed.
Gray J This is an appeal against sentence.
Introduction
The appellant Anthony John Smith pleaded guilty to three counts of armed robbery, one count of causing grievous bodily harm with intent to cause grievous bodily harm, one count of causing grievous bodily harm with intent to resist lawful apprehension, four counts of creating risk of bodily harm, two counts of illegal use of a motor vehicle and one count of being unlawfully on premises.
The Facts
Walkerville
On 7 February 1999 at about 1.30 am the appellant and an accomplice illegally used a motor vehicle to drive to the Buckingham Arms Hotel at Walkerville. The hotel was closed but staff were still present. They heard banging and realised that someone was seeking to gain entry through locked, double glass doors. They retreated to the gaming room office and activated an alarm. The appellant unsuccessfully attempted to try to break the door with a hammer. He then fired a sawn-off .22 rifle through the glass. Having gained entry the appellant directed a staff member to open the safe. He told the staff to lie on the floor and not move. They were threatened that if they moved they would be shot. About $22,000 was removed from the safe.
The police responded to the alarm. The appellant and his accomplice escaped through a window. The money was left behind. The appellant hid in the roof cavity of a neighbouring property. He was arrested at approximately 4.40 am. The appellant said that he left the rifle in the roof cavity. On 2 March 1999 someone retrieved the rifle after illegally gaining entry to the property. The judge concluded that the firearm was retrieved by the appellant or someone on his behalf.
Victim impact statements revealed the effect of the appellant’s conduct. All spoke of ongoing suffering and stress.
The appellant’s accomplice was aged 17 years. He pleaded guilty in the Youth Court and was sentenced to 18 months’ detention.
Escape from Custody
On 2 March 1999 the appellant escaped from custody. He remained at large for almost 12 months. On 28 September 2000 the appellant was sentenced for that offence to 12 months’ imprisonment. A non parole period of 9 months was fixed.
Torrensville
On 12 March 1999 the appellant and two accomplices illegally used a motor vehicle to travel to an ANZ bank at Torrensville. At 5.00pm after the bank had closed, but whilst staff members were present, the appellant and his accomplices used a sledge hammer to smash their way into the bank. The appellant directed a staff member to open the safe. He was told that his leg would be broken if he did not comply with the direction. Another was told to “hurry up or she would be shot”. While another was struck in the head. Cash and jewellery worth more than $180,000.00 was taken.
Victim impact statements described the profound and ongoing effects of this crime. One staff member required psychiatric help following the incident. Another who was pregnant at the time suffered soft tissue damage from being forced to kneel. She now suffers a post-traumatic stress disorder.
Myrtle Bank
On 1 February 2000 at about 2.30 pm the appellant confronted a man carrying a bag containing about $100 worth of coins at Myrtle Bank. The appellant pointed a firearm at the man and demanded that he hand over the money. The victim refused. He was shot by the appellant. He fell to the ground. The appellant seized the bag of coins and ran. The gunshot caused an extensive wound. The victim’s ribs were shattered. He underwent surgery and was hospitalised for seven days. Bullet fragments remain in the tissue around his spine. He has been left with significant scarring and a permanent depression in his back.
A passing motorist witnessed the incident and decided to give chase. He stopped his vehicle in front of the appellant. The appellant fired a shot through the front passenger window wounding the motorist in the chest. The shattering glass struck the motorist in the face. He was ordered from the vehicle by the appellant. The appellant then took the vehicle and escaped.
The driver has been left with ongoing physical and psychological sequelae. His flesh wounds have healed, but bullet fragments remain lodged close to his heart.
The sentencing judge noted the appellant’s assertion that the Myrtle Bank offences resulted from spontaneous conduct and concluded:
None of the witness statements of those who most closely saw the crimes speak of the presence of the second man. However, when one considers the enormity of the offences committed by you at Myrtle Bank on that day, the facts of whether you were there for an innocent purpose, whether you were accompanied and why you were carrying a firearm, rather pale. Indeed, I fail to see how the submission that you formed the view that JB was a police officer helps you either.
Arrest
The appellant was taken into custody on 15 February 2000 and has remained in custody since that date. The sentencing judge was invited to backdate the sentence to be imposed to 15 November 2000 the date on which the sentence for the escape from custody would have expired.
The Pleas of Guilty
The appellant pleaded guilty to the Walkerville offences at trial. Guilty pleas were entered to the illegal use charge and the unlawfully on premises charge on 11 October 2002. Guilty pleas were entered to the armed robbery charge and the four counts of creating risk of bodily harm on 14 October 2002. All other counts with respect to the Walkerville incident were withdrawn.
On 15 October 2002 the appellant pleaded guilty to the armed robbery at Torrensville and the Myrtle Bank offences. These offences included two counts of causing grievous bodily harm with intent to cause grievous bodily harm, one count of armed robbery and one count of illegal use of a motor vehicle.
Criminal Antecedents
Two of the appellant’s criminal antecedents were particularly relevant. When aged 15 the appellant and an accomplice committed an armed robbery at a suburban delicatessen. Both were armed and wore balaclavas. A shot was fired. The appellant was sentenced to 12 months’ detention for that offence.
On 8 October 1997 the appellant committed an armed robbery at the Hindmarsh post office. Along with several accomplices, all of whom were masked, the appellant entered the premises carrying one or more firearms. Staff were present. A shot was fired. The appellant was sentenced by a judge of the District Court on 10 September 1998 as a young offender to a period of detention of one year and eight months. That sentence was suspended on the condition that the appellant enter into a two year good behaviour bond.
The Gravity of the Criminal Conduct
The appellant’s criminal conduct was grave. The Walkerville offences occurred less than five months after he was released on a suspended period of detention for an offence of armed robbery. The appellant’s criminal conduct was a breach of the terms of his bond. The Torrensville and Myrtle Bank offences occurred during a period when the appellant had escaped from custody. The two Myrtle Bank victims suffered severe gunshot wounds and suffer ongoing problems. As earlier observed the other victims have suffered. For some that suffering will continue. It was a fortuity that more serious consequences did not result.
Personal Antecedents
The appellant was aged 19 years at the time of the Walkerville offences, the escape from custody and the Torrensville offences. He had just turned 20 when he committed the Myrtle Bank offences. The appellant had been raised in an Aboriginal community in suburban Adelaide. His parents were addicted to drugs. His father had criminal antecedents. The appellant performed well at school. He left school in year 11 and obtained employment. He then drifted out of employment. He has not used drugs or abused alcohol. It was against this background that he commenced offending.
Psychological, psychiatric and anthropological reports were tendered. The judge had regard to letters written by the appellant and testimonials from others. The reports and other evidence demonstrated the appellant’s intelligence and his ability to make considerable progress with his studies whilst in custody. It was said that he had gained a greater insight into the negative influences created by his family background since he had been in custody. The evidence before the judge established that the appellant had some hope for the future.
A psychiatric report by Dr Branson of 18 December 2002 described the community within which Mr Smith was raised:
[Mr Smith’s] upbringing was characterised by lots of stories about crime and prison and that his father seemed very proud of his criminal history. He said that his father’s brothers tended to support these attitudes, and that as part of his Aboriginal culture it was important to respect one’s male elders as role models. He said that it was also strongly stressed to him that it was the responsibility of the male members of the family to look after the female members, and he commented that his father always looked after his sisters. Mr Smith remains extremely concerned about his own sister’s welfare and feels that it is his responsibility to look after her.
A psychological report of Dr Balfour was before the court in 1998. It too described the influence of the appellant’s father upon the appellant:
Mr Smith’s father has a long history of criminal behaviour, including committing armed robberies to finance a heroin addiction. His father was proud of his criminal achievements and believed that his offending history made him a ‘man’. Mr Smith saw that his father was admired by the local aboriginal community due to his formidable size and that he commanded a degree of respect due to his criminal notoriety. He was confused during his adolescence because he knew that it was wrong to offend but at the same time he wanted to be respected like his father who had achieved his status in the local aboriginal community through crime.
An anthropological report by Dr Hutchings written in December 2002 disclosed a similar pattern of behaviour:
...as he grew older Anthony became increasingly influenced by his father and his father’s values and that of his father’s brothers. Indeed, it is these very male members of his family who hold the responsibility according to Aboriginal kinship to provide guidance by example. Anthony has pointed out to me that his father is respected in the Aboriginal community, not the least because he has shown that he is able to successfully survive the dominant society ‘system’ of incarceration – a system under which a great many Aboriginal people have suffered since colonization. Indeed, Anthony pointed out that the stories and lessons he has learnt from his father and some of his other male relatives were glorification of crime and fighting and not the immorality of a life of crime.
These reports indicate that the appellant was raised in an environment where accruing a history of serious criminal offending was a status symbol. He felt pressured by his father’s reputation. There was general expectation that he should be involved in criminal behaviour. While this provides no excuse for the appellant’s conduct it goes some way to explaining why this reportedly intelligent young man would be involved in serious offending of this kind. It forms part of the circumstances in which the offending occurred.
Dr Branson’s report expressed an awareness by the appellant that if his offending behaviour continued he would continue to be incarcerated for lengthy periods:
Mr Smith expressed to me his great concern to change this pattern of beliefs and behaviour, saying that since he had been in custody on this occasion, he had learnt an enormous amount about the inappropriateness of such beliefs and attitudes, and that he had started to find ways of dealing with situations differently in the future. He said that the psychologist, Ann Finlay, had been of significant use to him in this, together with his new found ability to study and achieve excellent results.
The insight is important when considering the appellant’s prospects for rehabilitation. His age and eagerness to become an educated and contributing member of society are also important matters.
The Approach to Sentencing
The Instinctive Synthesis Approach to Sentencing
A majority of the High Court appear to favour the instinctive synthesis approach to sentencing. In AB v The Queen [1] McHugh J considered the question of the proper approach:
To adopt a two-tiered approach to sentencing by beginning with an objectively determined sentence which is then arithmetically adjusted to take account of various factors is also a process which is plainly unsuited to the sentencing process in many cases. No doubt, where the circumstances of the offence are such that a heavy jail sentence is clearly required, the judge may make a notional or provisional assessment of the appropriate sentence and adjust it accordingly. But even in these cases - where punishment, deterrence and protection dominate the process - such an approach almost always invites error. Statutory exceptions aside, the task of the judge ‘is to pass such sentence as in all the circumstances relating to the offence and to the offender is that which he regards as the appropriate sentence’. If the judge first formulates an objectively determined sentence, he or she has only relied on part of the relevant circumstances and has effectively allowed that part of the circumstances to dominate the sentencing process. Worse still, there is a danger that the objectively determined sentence will be formulated by reference to abstractions derived from the circumstances, rather than by reference to the concrete facts of the case. Instead of sentencing his embezzler, with this history, for taking this amount in these circumstances, consciously or unconsciously, the judge may determine the objective sentence by what is perceived to be appropriate for an embezzler who has taken a large (or small) amount of money in breach of trust. Abstraction replaces the convicted person’s circumstances in determining the appropriate sentence.
...
The factors bearing on a sentence will vary from case to case. Frequently, they will point in different directions. The task of the sentencing judge or magistrate is not to add and subtract from an objectively determined sentence but to balance the various factors and make a value judgment as to what is the appropriate sentence in all the circumstances of the case. In R v Rushby, Street CJ said, correctly in my opinion, that the ‘determination in any given case of the appropriate sentence involves an adjudicative balancing of a number of differing and not entirely consistent elements’. No doubt at the conclusion of the process, the judge will check the sentence against other comparable sentences and may feel compelled to adjust the sentence up or down. But that is quite different from beginning with an ‘objectively’ determined sentence.
[1] (1999) 198 CLR 111 at 121-122. See also Hayne J at 157
In Wong v R[2] Gaudron, Gummow and Hayne JJ endorsed the principle that a judge must make an instinctive synthesis of all factors which bear upon the sentence to be imposed and arrive at a single result which takes due account of them all. It was considered to be a breach of principle to adopt an approach to sentencing in which a provisional sentence is first determined and then reduced or increased by factors which mitigate or aggravate an offence. Their Honours expressly agreed with the earlier cited observations of McHugh J:
In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view. We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the Court takes, for example, the offender’s place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences.
[2] (2001) 185 ALR 233 at 253
The advocates of the two-tiered approach have advanced transparency and accountability as the primary advantages. In R v Cameron[3] Kirby J observed:
In this Court, there has been something of a controversy about whether it is appropriate, in sentencing, to proceed explicitly by way of a ‘two-stage approach’ or not. In Victoria, the courts have long been hostile to this notion. Subject to overriding statutory obligations, they have favoured what is described as the ‘instinctive synthesis’ of factors resulting in a single ‘appropriate sentence’.
...
The appeal therefore reveals the need for ‘two stages’ and the general importance of transparency in judicial reasons for sentence. The history of administrative law in the past quarter century has seen a retreat from unaccountable decision-making. In the context of the higher duty of judges to state reasons that facilitate the judicial process, considerations important to judicial orders should likewise be revealed for the scrutiny of the litigants, the public and the appellate process. They should not be hidden in judicial formulae about ‘instinct’.
[3] (2002) 209 CLR 339 at 361-363 [69], [73]
It has been suggested that there may be little difference in substance between the two approaches. It is said that any difference should be characterised as semantic. Kirby J further observed[4]:
The difference that has emerged in this Court on this question may be one of semantics rather than of substance. However that may be, in my view it is desirable, and certainly permissible, by the common law, for a judge to identify the measure of the discount which he or she has allowed for a plea of guilty. If that means that a ‘two-stage approach’ is involved, including identification of the primary and then the discounted sentence, I regard it as inherent in the provision of an identifiable discount for such a plea. No such discount can be reduced to a set formula. Elements of intuition and judgment remain to be given weight in arriving at the aggregate sentence finally imposed.
[4] (2002) 209 CLR 339 at 362
There will necessarily be a degree of transparency in sentencing remarks. A judge is expected to apply established sentencing principles and provide reasons which identify the material facts and other considerations that have been weighed and balanced in the sentencing process. A judge may choose to disclose a more detailed process of reasoning thereby providing greater transparency. However, as McHugh J observed in AB, this approach may invite error.
There is a tension between the traditional approach to sentencing and the two-tiered approach. The assessment of imprecise material together with reason, judgment and mercy are the hallmarks of the traditional approach. Mathematical computations and adjustments involve accuracy and precision. In AB[5] summarised the tension:
The two-tiered approach of determining an objective sentence and then adjusting it is in conflict with the discretionary nature of the sentencing process. Discretionary judgments require the weighing of elements, not the formulation of adjustable rules or benchmarks. The two-tiered approach is also in conflict with the statements of principle in Veen v The Queen [No 2][6] where Mason CJ, Brennan, Dawson and Toohey JJ said:
‘However, sentencing is not purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform.
The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter.[5] (1999) 198 CLR 111 at [12]
[6] (1988) 164 CLR 465 at 476-477
Approach of the Sentencing Judge
The judge treated the appellant’s offending as involving three discrete incidents -Walkerville, Torrensville and Myrtle Bank.
The judge considered that a notional starting point of 15 years imprisonment for the Walkerville offences would be appropriate. This was then reduced to 12 years having regard to the appellant’s youth, and his pleas of guilty. In relation to the Torrensville offence the judge imposed a sentence of seven and a half years imprisonment. The judge observed that had it not been for the appellant’s youth and his pleas of guilty the term would have been in the order of 10 years.
The judge’s starting point in relation to the Myrtle Bank offences was 24 years. However, having regard to the appellant’s pleas of guilty a sentence of 18 years was imposed. Although the judge did not specifically mention the appellant’s youth as a factor, it is apparent that the reduction of six years included a reduction on account of youth.
The judge’s notional head sentences totalled 37½ years. However the judge considered that this sentence would be crushing and applied the principle of totality. The judge effected a reduction of seven and a half years by notionally treating the sentences for the Torrensville and Myrtle Bank as concurrent.
Pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) the judge imposed one sentence for all offending. The sentence totalled 30 years imprisonment. A non parole period of 18 years was fixed. Both the head sentence and the non parole period were backdated to 15 November 2000. The appellant’s earlier good behaviour bond was estreated. His suspended detention order was revoked. The appellant was ordered to serve this period of detention concurrently with the sentence of 30 years. The judge observed:
I recognise that [the non parole period] is a relatively high proportion of the head sentence, but that is a function of the circumstances in which this offending has occurred and the nature of that offending and that I see nothing particularly outstanding in your prospects for rehabilitation.
Issues on Appeal
The Complaints
The appellant complained that the head sentence and non parole period were manifestly excessive. It was said that the judge had failed to properly apply the totality principle, failed to make an appropriate reduction on account of the pleas of guilty, failed to give sufficient weight to the appellant’s personal circumstances and failed to allow properly for his prospects of rehabilitation.
The Combined Reduction
Counsel for the appellant submitted that in making a combined reduction for the appellant’s youth and his pleas of guilty the judge had adopted an incorrect approach to sentencing.
It is particularly important for a sentencing judge to specify the extent of a reduction made on account of a plea of guilty. Otherwise it is not possible to recognise the public policy allowing for such reductions[7].
[7] R v Wall & Richards (2000) 209 LSJS 135
In Cameron[8] the High Court considered that it was acceptable to specify a reduction on account of an accused’s plea of guilty. Such an approach did not offend the instinctive synthesis approach to sentencing. The High Court approved the long-standing practice of making reductions for pleas of guilty and disclosing the extent of the reduction.
[8] (2002) 209 CLR 339
In the present case the judge made one reduction with respect to each of the incidents in recognition of the appellant’s youth and his plea of guilty. By making a combined reduction for age and a guilty plea it is not possible for an appellate court to discern what allowance was made on account of the plea.
The judge’s approach involved further error. Attention was drawn to observations in R v Proom[9]:
The judge was correct to make a reduction for Ms Proom’s cooperation and pleas of guilty. He should have identified the reduction made on that account.[10] Including age as a factor was inappropriate. His Honour’s approach suggests that some mathematical adjustment was made for Ms Proom’s age. Such a process is inconsistent with the instinctive synthesis approach to sentencing favoured by a majority of the High Court.[11]
[9] (2003) 226 LSJS 363 at 379
[10] R v Place (2002) 81 SASR 395 at 411-413, 425, Cameron v The Queen (2002) 76 ALJR 382
[11] AB v The Queen (1999) 198 CLR 111 at 121-122, 157, R v Wong (2002) 207 584 at 611-612, Cameron v The Queen (2002) 209 CLR 339, R v Caplikas [2002] SASC 258
In the present case it is apparent that a mathematical reduction on account of the appellant’s youth was made. This conflicts with the instinctive synthesis approach to sentencing. Youth may be a basis for leniency. However, it should not lead to a mathematical reduction. As observed in R v Nylander[12]:
There comes a point where the addition of individual notional penalties to arrive at a starting point before a discount for totality is then made creates an air of unreality about the sentencing process …
This is true in the present case. A notional starting sentence of 49 years imprisonment for these crimes for a 19 year old carries an air of unreality. This is consequence of adopting a mathematical approach to sentencing. The further mathematical reductions made by the judge add to this air of unreality. Had the charges been contested by the appellant and no reductions made for guilty pleas a starting sentence of more than 40 years may have been imposed. Problems of this kind may be avoided by adopting the instinctive synthesis approach to the task of sentencing and utilising the provisions of section 18A of the Sentencing Act 1988.
[12] [2003] SASC 191 at [81] per Bleby J
Rehabilitation
Counsel for the appellant submitted that there was an inconsistency in the judge’s approach to rehabilitation. During the course of sentencing the judge observed that there were “some promising signs” for the appellant. The judge later observed “I see nothing particularly outstanding in your prospects for rehabilitation”. It was submitted that these statements were inconsistent and that the latter conclusion was against the weight of the evidence before the court.
Dr Branson’s report provided:
Given his history up to this time, one would naturally have to be very cautious about making any predictions concerning his prognosis for future offending. The best that can be said is that he appears to have been making excellent progress both from a psychological and educational point of view, and if he can maintain his motivation in these areas, then there must be at least some chance of a positive outcome. Mr Smith is 22 years old and despite his extremely serious criminal history up to this point, it would in my opinion be inappropriate to deal with him as though he were a hopeless case. He has very significant potential although he also has very significant obstacles to overcome.
The judge’s conclusion that there was “nothing particularly outstanding” in the appellant’s prospects for rehabilitation was open on the evidence. The judge did not treat the appellant as though he was a “hopeless case”. The expert opinion was guarded and expressed as an assumption, “if he can maintain his motivation”. There was no inconsistency in the judge’s approach. It was not “at odds” with the evidence.
Youth and Rehabilitation
There was one further difficulty involving the judge’s consideration of the appellant’s rehabilitative prospects. The judge’s earlier identified error of combining the appellant’s youth with his pleas of guilty to make a mathematical reduction resulted in an inadequate allowance for the appellant’s youth in the sentencing process. It was important to have regard to the appellant’s youth when considering his prospects for rehabilitation.[13] The judge did not appear to address this issue. As earlier observed, the expert reports suggested that there was at least some chance of a positive outcome and that it was inappropriate to treat the appellant as a hopeless case. The appellant had prospects for rehabilitation. His youth required that consideration be given to these prospects.
[13] R v Weaver (1973) 6 SASR 265 at 267, Taylor v Barr (1987) 135 LSJS 106 at 110-112, Vartokas v Zanker (1988-89) 51 SASR 277 at 279.
Conclusion
The gravity of the appellant’s crimes necessitated a lengthy head sentence. His criminal conduct occurred notwithstanding that he had been warned by courts when sentenced on earlier occasions for similar offending. The appellant’s use of a firearm to terrify and to wound demanded a heavy penalty. However, his youth and his prospects for rehabilitation lead to the conclusion that a head sentence of 30 years was excessive. The judge erred by merging the fact of the appellant’s youth with his pleas of guilty to effect a mathematical reduction. In all probability this error led the judge to make an inadequate allowance for the appellant’s youth. The judge also gave insufficient weight to the appellant’s rehabilitative prospects given his young age and evident intelligence.
Error has been demonstrated. The appellant should be re-sentenced.
Re-sentencing
The Approach to Re-sentencing
As earlier observed there is an artificiality in adding the notional sentences for the three incidents of offending and then making a reduction for the pleas of guilty and the appellant’s youth and then applying the totality principle. In a very real sense the appellant’s offending although separated in time represented an ongoing course of criminal conduct. That offending was driven by his misconceived attempt to gain respect and esteem within his community. The photographs of the appellant and others with the proceeds of his crimes is an example of his misguided attitude.
The preferred approach in the present case is to impose one sentence for all offending pursuant to section 18A of the SentencingAct. As a result the appropriate approach in this case is to assess the gravity of the appellant’s criminal conduct; to have regard to the injuries and ongoing suffering of the victims of the crimes; to have regard to the appellant’s antecedents both criminal and personal; to weigh the need for personal and general deterrence; to have regard to the appellant’s aboriginality, his youth and his prospects of rehabilitation; to make a reduction on account of his pleas of guilty, contrition and remorse; to consider whether it is possible to adopt a merciful approach and finally to have regard to the principle of totality. By this instinctive process all relevant factors will have been considered and weighed to effect a just sentence for the appellant’s offending.
In considering an appropriate sentence for the appellant all the above factors have been considered and weighed. Some have been discussed earlier in these reasons. However it is important to discuss other factors in more detail.
Aboriginality
When sentencing a judge should take account of facts which exist only by reason of an offender’s membership of an ethnic or other group[14]. In R v E[15] the issue was addressed by Malcolm CJ:
[The respondent’s] background as an Aboriginal, brought up in an environment of perceived conflict between the urban Aboriginal community to which he belonged and police, and the deprived oppressive socio-economic conditions in which his family and other members of his ethnic group have suffered, assist in explaining to some degree how his attitudes to the police and the rest of the community have developed. The extent to which allowance should be made by way of mitigation on account of these circumstances must depend on any particular case to very significant degree on the nature of offence and the circumstances under which it is committed.[16]
[14] R v Neal (1982) 149 CLR 305
[15] R v E (A Child) (1993) 66 A Crim R 14 at 17 see also Parfitt v R unrep WA Supreme Court CCA No 149 of 1995 and Harradine v R (1992) 61 A Crim R 201 at 210
[16] R v E (A Child) note 151 at 17.
In the present case the appellant’s urban aboriginality raises important considerations. The appellant’s father came to Adelaide from a traditional indigenous community. The social and economic conditions in which he lived were poor. He was gravely disadvantaged. He gained respect in his community through criminal offending. The appellant observed the way in which his father gained respect amongst his community and attempted to follow his example. His father was his role model. In a very direct way the appellant was disadvantaged. These factors appear to have contributed to his offending.
The appellant’s aboriginality provides an explanation for his conduct. This factor is mitigatory. If, as the expert reports indicate, the appellant has come to realise the inappropriateness of his former attitudes then his prospects for rehabilitation are improved.
The Gravity of the Offending
The mitigatory effect of the appellant’s urban aboriginality must be weighed against the gravity of his offending. The extreme gravity of his criminal conduct and his previous history of similar offending make general and personal deterrence of great importance.
Youth and Rehabilitation
In the case of youthful offenders, rehabilitation is a prime consideration. The rehabilitation of these offenders has been regarded as a method of achieving long term protection for the public. The youth of an offender, particularly one recently attaining the age of majority, may allow for leniency. These factors must be addressed when imposing a head sentence. Youth and long term rehabilitative prospects are also of particular importance when fixing a non parole period. In the present case, the appellant’s age, intelligence, his application to his studies whilst in custody, and his apparent recognition of the inappropriateness of his earlier attitudes and criminal conduct allow some hope for his future rehabilitation.
Conclusion
I would allow the appeal. I would make a reduction of 20% on account of the appellant’s pleas of guilty, contrition and remorse. I would sentence the appellant to imprisonment for a term of 25 years. I would fix a non parole period of 12 years and 6 months. I would backdate the head sentence and the non parole period to commence on 15 November 2000.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1 (1999) 198 CLR 111 at 121-122. See also Hayne J at 157
2 (2001) 185 ALR 233 at 253
3 (2002) 209 CLR 339 at 361-363 [69], [73]
4 (2002) 209 CLR 339 at 362
5 (1999) 198 CLR 111 at [12]
6 (1988) 164 CLR 465 at 476-477
7 R v Wall & Richards (2000) 209 LSJS 135
8 (2002) 209 CLR 339
9 (2003) 226 LSJS 363 at 379
10R v Place (2002) 81 SASR 395 at 411-413, 425, Cameron v The Queen (2002) 76 ALJR 382
11AB v The Queen (1999) 198 CLR 111 at 121-122, 157, R v Wong (2002) 207 584 at 611-612, Cameron v The Queen (2002) 209 CLR 339, R v Caplikas [2002] SASC 258
12 [2003] SASC 191 at [81] per Bleby J
13R v Weaver (1973) 6 SASR 265 at 267, Taylor v Barr (1987) 135 LSJS 106 at 110-112, Vartokas v Zanker (1988-89) 51 SASR 277 at 279.
14 R v Neal (1982) 149 CLR 305
15R v E (A Child) (1993) 66 A Crim R 14 at 17 see also Parfitt v R unrep WA Supreme Court CCA No 149 of 1995 and Harradine v R (1992) 61 A Crim R 201 at 210
16 R v E (A Child) note 151 at 17.
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