SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMOKER
[2016] SASCFC 114
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Lovell and The Honourable Justice Hinton)
28 September 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CUMULATIVE SENTENCES
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY
Appeal against sentence.
The appellant was found guilty of aggravated robbery and sentenced to imprisonment for eight years. That sentence was ordered to commence at the conclusion of a sentence of four years and six months of imprisonment with a non-parole period of two years and six months previously imposed by a Magistrate for unrelated offending. In sentencing the appellant for the aggravated robbery the sentencing Judge extended that non-parole period by six years. Accordingly, the appellant was required to serve a total of 12 years and six months of imprisonment with a non-parole period of eight years and six months.
The appellant submits that the sentence in manifestly excessive in that the aggregation of the sentence imposed by the Judge with that imposed by the Magistrate is crushing. The appellant contends that having regard to the totality principle, the Judge should have reduced the sentence imposed for the aggravated robbery and thereby reduced the totality of the imprisonment period to be served.
Held per Lovell and Hinton JJ (dismissing the appeal):
1. The sentence imposed for the aggravated robbery is, viewed in isolation, appropriate.
2. The aggregate sentence imposed by the Judge and Magistrate cannot be considered to be disproportionate to the overall offending such that the Judge’s sentencing discretion miscarried.
3. The sentence is not crushing.
Held per Nicholson J (dismissing the appeal):
1. The sentence, being the head sentence and the non-parole period, is not, of itself, manifestly excessive.
2. The total period of imprisonment is not so crushing in the circumstances to require intervention on appeal.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 5AA, s 137, s 302, s 310; Correctional Services Act 1982 (SA); Statutes Amendment (Truth in Sentencing) Act 1994 (SA), referred to.
R v Cattell [2010] SASCFC 18; R v Kane [2013] SASCFC 149; R v Delphin (2001) 79 SASR 429; R v Gannon (2012) 113 SASR 1; R v Thomson Unreported, South Australian Supreme Court, King CJ, 21 May 1991; The Queen v Shannon (1979) 21 SASR 442; The Queen v Spiero (1979) 22 SASR 543; The Queen v Dorning (1981) 27 SASR 481; The Queen v Knight (1981) 26 SASR 573; The Queen v Dube and Knowles (1987) 46 SASR 118; The Queen v Brett (1987) 140 LSJS 343; The Queen v Prendergast (1988) 147 LSJS 486;
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- R v Smoker [2016] SASCFC 114
- Case
- [2016] SASCFC 114
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the aggregated sentence, comprising a sentence imposed by a Magistrate for certain offences and a sentence imposed by a Judge for aggravated robbery, was disproportionate to the appellant's overall criminality, thereby constituting an error of sentencing discretion. The court was required to consider the principle of totality in sentencing and determine if the combined effect of the sentences was unduly harsh.
The court reasoned that the sentencing Judge had carefully considered the question of totality and found the total sentence to be proportionate to the seriousness of the offending, not so crushing as to warrant merciful intervention. While acknowledging the influence of reports on the Magistrate's sentencing, particularly regarding the nexus between substance abuse and the appellant's antisocial personality disorder, the court noted these reports did not address the aggravated robbery offence. The court found that, given the appellant's extensive criminal history, the role of alcohol abuse, his failure to respond to past interventions, and the absence of independent evidence supporting a belief that he had "turned the corner," the leniency shown by the Magistrate was substantial. The court concluded that the aggregated sentence was not disproportionate when viewed in light of the period and gravity of the offences, the harm caused, the appellant's antecedents, his repeated failure to respond to leniency, and his disregard for authorities. The court also considered the appellant's explanations, personal circumstances, and professed desire to change, but noted the absence of remorse for the aggravated robbery and the gravity of that offence, including his prior conviction for armed robbery. The court emphasised the paramount importance of deterrence in such cases.
Ultimately, the court held that the aggregated sentence and the fresh non-parole period were not disproportionate to the overall offending, and therefore, the sentencing discretion had not miscarried. The appeal was dismissed.
Orders
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Background
Background to the litigation
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Evidence
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Ratio Decidendi
Legal Principle Established
Established by: NICHOLSON J,
Lastly, the Magistrate also had the benefit of an eligibility assessment report for a treatment intervention program, prepared after an assessment was conducted of him in September 2013. Of particular relevance is the observation:A nexus exists between Mr Smoker’s substance use disorders and his offences; he admitted to having been influenced by alcohol, cannabis and benzodiazepines. However as documented by Dr Raeside, Mr Smoker’s substance abuse appears to trigger his antisocial personality disorder traits, such as a disregard for the rights of others, aggression, destruction of property, theft, irritability, impulsivity and rationalisation of his behaviour. Consideration As indicated in opening this judgment, the appellant does not argue that the sentencing Judge committed any error of law, or that she failed to take into account any relevant factor or that she took into account any irrelevant factor. His argument is that his sentence is manifestly excessive in that the aggregation of the sentence imposed by the Judge with that imposed by the Magistrate is crushing. The sentencing Judge was alive to the need to ensure that the overall sentence imposed reflected the appellant’s overall criminality. Immediately following her announcement of the sentence and setting of a fresh non-parole period, she said:I have considered the question of totality carefully. In my view your total sentence is proportionate to the very serious nature of your offending. I do not think there is any basis to reduce it on the grounds of totality. I do not think that it is so crushing as to call for the merciful intervention of the court. It can be accepted that the reports influenced the Magistrate in the way in which he approached his sentencing task. It is pertinent to observe that the reports do not deal with the offending that was before the Judge. Bearing in mind the appellant’s extensive criminal history and the role alcohol abuse in particular has played in his offending over many years, and his failure to respond to the efforts of the authorities over the years, it appears that the foundation for substantial leniency was the belief that the appellant had reached an age where he had likely turned the corner. There was no independent evidence to support this conclusion. It appears the product of the appellant’s professed desire to be positively involved in his son’s life and the observation by Mr Fugler that “most individuals with antisocial personality disorders gradually reducing (sic) their antisocial behaviour by the fourth decade of life”. When regard is had to the fact that the sentence imposed for the aggravated robbery is, viewed in isolation, appropriate, and to the fact of substantial leniency having been shown by the Magistrate to the extent indicated, it cannot be said that the overall sentence, that is the aggregation of the sentences imposed by the Judge and the Magistrate, is disproportionate to the overall offending considered in all the circumstances. In any event, having regard to the period over which the offending occurred, the number of offences, the gravity of those offences, the harm caused to individuals and to the community generally, the appellant’s antecedents, the repeated failure to respond to leniency offered and assistance provided in the past, and the persistent demonstration of an attitude of disregard for the authorities it cannot be said that the aggregated sentence and fresh non-parole period are disproportionate to the overall offending. We arrive at that conclusion bearing in mind the explanation offered for the appellant’s offending, the contents of the reports, the appellant’s pleas in the Magistrates Court, and his professed desire to change. We also bear in mind the absence of any remorse or contrition expressed for the aggravated robbery, the gravity and circumstances of that offence, the harm suffered by Mr Pohl and the cost to his business, and that the appellant has committed armed robbery in the past for which he served a lengthy period in prison. We bear in mind what has fallen from this Court since 1979 – those who commit aggravated robberies of the type committed here can expect to receive heavy sentences. Deterrence is paramount. Again we have taken into account the appellant’s explanation and personal circumstances. We have also considered the impact of the time the appellant will serve in custody relative to denunciation, condign punishment, deterrence and rehabilitation. We do not consider a reduction in the sentence for the aggravated robbery was necessarily warranted. In our view the aggregated sentence cannot be said to be disproportionate such that the sentencing discretion has miscarried.