R v Smith

Case [2003] SASC 263

R v SMITH
[2003] SASC 263

Court of Criminal Appeal:  Debelle, Lander and Gray JJ

  1. DEBELLE J         The facts are recited in the reasons of Lander J.  I agree with the substance of His Honour’s reasons.

  2. 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.

  3. 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.

  4. 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.

  5. Less than five months later, the appellant committed the armed robbery at Walkerville.

  6. 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…

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AGLC
R v Smith [2003] SASC 263
Case
[2003] SASC 263
Decision Date

CaseChat Overview and Summary

In the case of R v Smith, the appellant, Anthony John Smith, faced charges stemming from multiple criminal incidents, including armed robbery, grievous bodily harm, and illegal use of motor vehicles. The appellant had pleaded guilty to these charges, but contested the sentencing in the higher court. The legal issues centred on whether the original sentencing was appropriate, particularly regarding the length of the sentence and the consideration of the appellant's youth and potential for rehabilitation.

The court examined whether the trial judge had adequately considered the appellant's youth and his rehabilitative prospects, which were critical factors in the sentencing process. The original sentence was found to be excessive as it did not appropriately weigh these factors. The court also identified that the judge had incorrectly combined the appellant’s youth with his pleas of guilty to make a mathematical reduction, which led to an inadequate consideration of the appellant's youth and a failure to properly assess his rehabilitative potential. Consequently, the court concluded that the original sentence should be set aside, and the case remanded for re-sentencing.

In light of these findings, the court outlined a new approach for re-sentencing, emphasizing the need to impose a single sentence for all the appellant's offences, considering all relevant factors comprehensively. This approach ensures that all aspects of the appellant's criminal conduct, victim impact, antecedents, and potential for rehabilitation are appropriately weighed to achieve a just sentence. The case will return to the lower court for re-sentencing following these guidelines.

Orders

Orders of the court

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Background

Background to the litigation

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 FactsWalkerville 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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DEBELLE J (dissent) LANDER J (dissent)
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-sentencingThe 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.

Ratio Decidendi

Legal Principle Established

Established by:

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