R v Smoker
[2016] SASCFC 114
•28 September 2016
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; R v Drumgoon Unreported, Supreme Court of South Australia, Cox J, Perry J, Williams J, 13 December 1995; R v Hooper (1995) 64 SASR 480; R v Rooke [1998] SASC 6738; R v Lumsden [2000] SASC 49; R v Dwyer (2015) 121 SASR 587; R v Wilson (2010) 106 SASR 502; R v Eleche [2014] SASCFC 73; R v Jackson [2014] SASCFC 118; R v Scott [2014] SASCFC 137; R v Lundberg [2012] SASCFC 122; R v Harradine & Harradine [2012] SASCFC 103; R v Copeland (No 2) (2010) 108 SASR 398; R v Hutchins [2009] SASC 275; R v Randell-Smith and Davi (2008) 100 SASR 326; R v Lundberg [2012] SASCFC 122; R v McGlynn [2011] SASCFC 74; R v Betts [2011] SASCFC 27; R v Van Huizen Unreported, Supreme Court of South Australia, King CJ, 23 February 1990; R v Knight (1981) 26 SASR 573; R v E, AD (2005) 93 SASR 20; Veen v The Queen [No 2] (1988) 164 CLR 465; Bugmy v The Queen (1990) 169 CLR 525; AB v The Queen (1999) 198 CLR 111; R v Raggett (1990) 101 FLR 323; Veen v The Queen [No 1] (1979) 143 CLR 458; Markarian v The Queen (2005) 228 CLR 357; Munda v Western Australia (2013) 249 CLR 600; Postiglione v The Queen (1997) 189 CLR 295; R v Holder [1983] 3 NSWLR 245; R v Rossi (1988) 142 LSJS 451; The Queen v Brett (1987) 140 LSJS 343; R v Yates [1985] VR 41; R v Waugh (2005) 93 SASR 274; R v Flentjar [2013] SASCFC 11; R v BRWK (2005) 91 SASR 200; R v Cramp (2010) 106 SASR 304; Johnson v The Queen (2004) 78 ALJR 616; Wheeler v Western Australia [2007] WASCA 109; Seroka v Western Australia [2006] WASCA 284; Jarvis v The Queen (1993) 20 WAR 201; R v Place (2002) 81 SASR 395; R v Smith (1987) 44 SASR 587, considered.
R v SMOKER
[2016] SASCFC 114Court of Criminal Appeal: Nicholson, Lovell and Hinton JJ
NICHOLSON J.
Introduction
On 26 April 2016, Bradley Mark Smoker was sentenced in the District Court to imprisonment for eight years having been found guilty, after trial by jury, of the offence of aggravated robbery. At the time of sentence, he was serving a term of imprisonment for four years and six months with a non-parole period of two years and six months for other offending. This had been imposed by a Magistrate on 22 December 2014 and was backdated to commence on 6 June 2014. The Judge ordered that the sentence of eight years be served cumulatively, giving rise to a total period of imprisonment of 12 and a half years from 6 June 2014. Her Honour extended the non-parole period of two and a half years by a further six years to eight and a half years.
A Judge of this Court granted permission to appeal against both the head sentence of eight years and the extended non-parole period of eight and a half years on the following grounds.
1.The head sentence is manifestly excessive;
a. The sentencing Judge did not make an appropriate allowance for totality.
2.The non-parole period is manifestly excessive;
a. The sentencing Judge did not make an appropriate allowance for totality;
b. The non-parole period, at 70%, is too high in proportion to the head sentence.
Circumstances of the offending in brief
On 3 June 2014, the appellant went to a suburban liquor store wearing a baseball cap and dark glasses covering part of his face and was armed with a large knife. The appellant thrust the knife at the owner of the liquor store who was working that day and demanded cash. He said “give me your fucking cash or I’ll stab you in the face, dog”. The appellant forced the owner to walk backwards into the store room and to give him $1,700 from the safe while the appellant held the blade of the knife close to his face. The appellant then forced the owner of the shop to go to the till at the front of the store from which he took a further $600. On leaving, the appellant picked up the coin drawer from the till and threw it at the head of the owner. The appellant was apprehended for the offence on 5 June 2014.
The Judge received and had regard to a victim impact statement from the owner of the liquor store. The Judge summarised the effect of the offending on the owner.
He described the terrifying nature of this incident. He also described the devastating impact the offence has had upon him. He said the robbery has cost him in the vicinity of $10,000 by way of loss of wages, due to him attending therapy and court appearances, extra staff wages as he was unable to work alone for some weeks, the purchase of new surveillance equipment and an insurance excess. He also now experiences a feeling of caution and unease towards strangers and he has a visual video that plays in his mind constantly as a reminder of that day.
The Judge characterised the offence of aggravated robbery, particularly where a weapon is used, as a most serious offence. Her Honour also described the appellant’s offending as “a serious example of an armed robbery by nature of the offence itself but also in the context of [the appellant’s] criminal history”.
The appellant’s personal circumstances in brief
The appellant had a deprived and very difficult upbringing characterised by extreme physical punishment meted out by his step-father and by ongoing sexual abuse perpetrated by an adult male in his family. As a consequence, the appellant took early to misusing alcohol and drugs. His schooling was interrupted and he finished in year nine. The appellant has only ever had intermittent work of an unskilled nature since leaving school. The appellant has a son born in May 2012 but is no longer in a relationship with the boy’s mother. He has not had any contact with his son since remanded in custody in June 2014 which has been a source of distress to the appellant.
Unfortunately, the appellant has a lengthy and very serious criminal history; one that was particularly relevant to the sentencing task before the Judge.
The appellant is now in his early 40s. He first offended in 1992 when he was about 17 years of age and since then has persistently offended, apart from a break of some years when, in 2001, he was imprisoned in Western Australia following a conviction for armed robbery in that State.
The appellant has committed numerous larceny, property-based and other dishonesty-based offences, numerous motor vehicle and traffic offences, and numerous public disorder, damage property and breaches of bail and other court orders offences. He has committed a significant number of offences involving violence, such as assaults with and without the use of offensive weapons. The appellant has spent substantial periods of time in custody. As previously noted, the appellant has a prior conviction for the offence of armed robbery for which he was sentenced to imprisonment for six years in Western Australia.[1]
[1] This summary of prior offending does not include the matters for which the appellant was sentenced to four and a half years imprisonment on 22 December 2014 in the Magistrates Court, dealt with further below.
One can only have much sympathy for the appellant with respect to his appalling background and treatment while growing up. However, over the years, the appellant has become a very dangerous person from whom the public must be protected and has demonstrated a long standing resistance to any form of rehabilitation. Further, when sentencing for his continuing involvement in serious offending, both personal and general deterrence have become very significant considerations.
The sentence imposed by the Judge
In R v Place,[2] Doyle CJ, Prior, Lander and Martin JJ (with whose reasons Gray J agreed) said this.
This Court has said on a number of occasions that armed robbery on premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects that appear to be weapons are used to threaten the immediate victims are prevalent crimes committed against vulnerable victims and are crimes in respect of which general deterrence and the protection of the public are of particular importance. This Court has emphasised that such crimes of armed robbery are frequently committed by persons addicted to and affected by alcohol or other drugs who commit the crimes in order to obtain funds to meet their addiction. For these underlying reasons, this Court has said that, generally speaking, the standard of penalty appropriate for those types of armed robberies committed by those types of offenders is in the order of six to eight years imprisonment ... .
The types of armed robberies to which the standard of six to eight years applies can be described in broad terms only. The range of both personal and objective circumstances associated with crimes of armed robbery is such that it is inappropriate to attempt to be any more precise. It is the circumstances of a particular offence and offender that determine whether the standard is applicable. The importance of carefully assessing those circumstances should not be diminished by the use of labels or by attempting to create categories of offending.
[2] [2002] SASC 101; (2002) 81 SASR 395 at [100]-[101].
The present case is a serious example of the offence of aggravated robbery and a fairly typical example of armed robbery involving the use of a very dangerous weapon. There were no mitigatory circumstances. It would seem that the appellant needed money and was prepared to engage in an armed robbery to obtain it.
The maximum penalty for aggravated robbery is life imprisonment. The range indicated in Place for an armed robbery of this type is six to eight years. Of course, circumstances may arise where a Judge would be justified in imposing a sentence less than six years or indeed a sentence greater than eight years. In the circumstances of this case, it was well within the discretion of the Judge to adopt the maximum of the indicative range in Place. The sentence of eight years imprisonment was not “unreasonable or plainly unjust” so as to suggest manifest excess.[3]
[3] See, Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
There is no direct challenge in the grounds of appeal to the order for accumulation leading to the total period of imprisonment ordered by the Judge of 12 and a half years. I will return to the issue of accumulation later in these reasons. However, on the assumption that the total of 12 and a half years were to remain unchanged and again, when regard is had to all of the circumstances identified earlier, an extension of the non-parole period to eight and a half years, or approximately 68 per cent of the total period of imprisonment, cannot be said to be unreasonable or plainly unjust. On this assumption, the extended non-parole period was not manifestly excessive.
Whilst the authorities steer clear of suggesting benchmarks for non-parole periods, a non-parole period of 68 per cent of a head sentence or total period to be served is not particularly uncommon. In this case, the non-parole period set by the Judge still allows for four years (should parole be granted at the earliest opportunity) during which the appellant might be released on parole under the supervision of and with the assistance that can be provided by the Parole Board. A non-parole period of eight and a half years, with reference to a total period to be served of 12 and a half years, was within the discretion available to the Judge.
In fairness to counsel for the appellant, the main argument pressed on appeal was that, whilst the Judge expressly directed herself that she was to have regard to the issue of totality, her Honour did not but should have moderated both the head sentence and the extended non-parole period on this basis. According to counsel, it was her Honour’s failure to do so that generated a manifestly excessive outcome.
Totality
The principle of totality embraces two related aspects of the sentencing discretion. In R v E, AD,[4] Doyle CJ (with whose reasons Besanko J agreed) said this.
The totality principle has been stated in terms that reflect slightly different aspects. The first aspect is that when an offender is sentenced for a number of offences, the court must ensure that “the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved” ... The other aspect is that sometimes, although the individual terms of imprisonment imposed in respect of each of a number of offences will be appropriate, the aggregate of all of those sentences will become so “crushing” as to call for some reduction in the aggregate ... I refer also to the remarks of Kirby J on this point in Postiglione. As these statements of the principle indicate, it is a general principle that requires the court to assess the overall criminality involved, and to do so by reference to the aggregate sentence to be imposed.
In recent times there has been a tendency for the totality principle to be invoked, almost routinely, in support of a complaint that a sentence is excessive. Ordinarily, if a judge or magistrate imposing sentence has imposed a sentence appropriate for each offence under consideration, there will be no reason to consider the totality principle. The sentences imposed will be the appropriate sentences for the offending conduct. In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.
[citations omitted]
[4] [2005] SASC 332; (2005) 93 SASR 20 at [37]-[38] (citations omitted).
The Judge in her sentencing remarks dealt with the issue of totality in this way.
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.
As earlier indicated, at the time the appellant was sentenced for the aggravated robbery, he was serving a term of imprisonment of four and a half years for other offending. That term of imprisonment had been imposed in the Magistrates Court on 22 December 2014 with respect to a large number of offences committed by the appellant during the period 9 January 2013 to early June 2014.
The offences for which the appellant was sentenced included six counts of theft and one count of going equipped, five counts of damage property, one count of acting in a disorderly manner, five counts of assault, three of which had aggravating features, one count of resist arrest, a number of driving and motor vehicle offences, a serious criminal trespass, a breach of bond, four offences of breach of bail and two offences of breach an intervention order. As I have indicated, these offences were committed over a substantial period of time and many involved separate incursions into criminal conduct.
I have reviewed the lengthy and quite comprehensive sentencing remarks of the Magistrate who dealt with the matters that came before him. The penalty imposed of four and a half years imprisonment with a non-parole period of two and a half years can be characterised as moderate and there has been no appeal from the Magistrate’s decision. However, there were sound reasons, following a consideration of the appellant’s personal circumstances, to justify the Magistrate’s moderate sentence, as explained by his Honour in his remarks on penalty.[5] An important feature of the appellant’s offending, not by way of justification but relevant to prospects for rehabilitation, is that the appellant had little recollection of any of the offending because he was almost always intoxicated.
[5] Police v Smoker, Remarks on Penalty, 22 December 2014, AMC-14-14026, AMC-13-3585, AMC-13-10710, AMC-13-9944, AMC-13-1711, AMC-13-3603, AMC-13-10139, MCCHB-13-1178, MCCHB-13-1151, MCCHB-13-793, MCCHB-13-4419, MCCHB-13-1867, MCCHB-13-4351, MCCHB-13-4051, MCCHB-14-336, MCCHB-14-2972, MCPAD-13-5401 particularly at [24]-[30].
It is of significance that the aggravated robbery for which the appellant was sentenced by the Judge occurred on 3 June 2014, that is, within but towards the very end of the period of time during which the offending dealt with by the Magistrate was committed. It is unfortunate that it was not practicable for the appellant to be sentenced for the aggravated robbery at the same time as, and as part of the sentencing package for, the whole course of criminal conduct which took place between January 2013 and early June 2014. This would only have been possible if the sentencing for the Magistrates Court matters had been deferred until after the District Court trial of the aggravated robbery. However, other considerations, no doubt, militated against this approach.
During the hearing of the appeal, counsel for the appellant (who was not counsel at the time of sentencing) was unable to explain why the Judge had not been provided with a report by the clinical psychologist, Mr Allen Fugler and a pre-sentence report both of which had been relied on by the Magistrate. It is not clear whether or not the failure to put this material before the Judge was the result of a forensic decision by counsel who appeared during sentencing submissions.
Having considered the Magistrate’s sentencing remarks, the Court took the view that this material was likely to have been of assistance to both the Judge and this Court. After some discussion, both counsel agreed that the two reports should be made available for the purpose of the appeal. The concession on the part of the Director of Public Prosecutions was properly made. At the very least, the material was likely to assist in providing a better understanding of the evidence of and submissions concerning the personal circumstances that were before the Judge. In R v Smith,[6] King CJ (with whom Cox and O’Loughlin JJ agreed) held as follows:
The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which have occurred since the imposition of sentence and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence.
[citations omitted]
[6] (1987) 44 SASR 587 at 588.
The pre-sentence report (dated 7 April 2014) and Mr Allen Fugler’s clinical psychologist report (dated 1 October 2014) both provide a very detailed and apparently comprehensive description and analysis of the appellant’s personal history, medical and psychological issues and criminogenic risk facts as they have developed over the years.
The appellant was 39 at the time of assessment. His long history of offending commenced when he was a minor and has continued unabated except when spending time in prison. There are three main drivers to his functioning: he has an Antisocial Personality Disorder which developed from a Conduct Disorder in childhood; he has an Alcohol Use Disorder; and he has significant unresolved complications arising from his being sexually abused over a period of three years or so as a young teenager by an adult male in his family. Mr Fugler expressed this opinion.
Under most circumstances [the appellant] would be expected to be displaying a reduced level of offending in line with increased maturity, most individuals with antisocial personality disorders gradually reducing their antisocial behaviour by the fourth decade of life. In [the appellant’s] case any [sic: lack of] diminution in unlawful activity has not been the result of a low level of motivation on his part, [the appellant] expressing positive commitment to establishing a stable crime free future, but rather a combination of the personality disorder and the negative affects causally related to the sexual abuse he experienced in childhood. Those have impacted on his ability to cope effectively with conflict and stress and ability to break a long established pattern of offending.
It can be accepted from the conclusions and opinions expressed by Mr Fugler that the appellant’s personality and other problems are so entrenched that he has little prospect of changing from his criminal lifestyle without very intensive professional assistance along the lines suggested in both the pre-sentence and Fugler reports. It is also apparent that whilst some such assistance can be made available in the custodial setting much assistance will need to be given to the appellant once he were to be released from prison. He will need a very lengthy period on parole accompanied by intense supervision and professional assistance.
During the period of the offending before the Magistrate and the aggravated robbery before the Judge, the appellant was angry and aggressive. He had been drinking to the point where he could not afford alcohol and the offending was intended, largely, to raise money for this purpose. He was particularly distressed because he had been prevented (by an intervention order) from seeing his young son.
As I have already observed, one ought have sympathy for the circumstances of the appellant’s upbringing that have brought him to where he is now. Nevertheless, the protection of the public has become a primary consideration.
Even so, a question that arises is whether the proximity (in time) of the aggravated robbery offence with the other offending dealt with by the Magistrate, together with the conclusion that all of the offending arose from the same concatenation of circumstances, were matters to which the Judge had regard when declining to allow some element of partial concurrency.
According to the first aspect of totality, identified by Doyle CJ in R v E, AD,[7] the Court must ensure that “the aggregation of the sentence appropriate for each offence is a just and appropriate measure of the total criminality involved”.[8] The Judge specifically addressed this issue in her remarks when considering the question of totality: “In my view your total sentence is proportionate to the very serious nature of your offending”. However, the Judge, through no fault of her own, did not have before her the two reports referred to that were before the Magistrate and now this Court.
[7] [2005] SASC 332; (2005) 93 SASR 20 at [37]-[38].
[8] Postiglione v The Queen (1997) 189 CLR 295 at 307-308.
Nevertheless, her Honour was sufficiently on notice of, and able to give proper consideration to, the two matters referred to above when making the order for accumulation given that she did have the benefit of the appellant’s prior criminal history, including its chronology and the Magistrate’s very comprehensive sentencing remarks. Furthermore, when all of the circumstances including the contents of the two additional reports, are taken into account, the order that the sentence imposed for the aggravated robbery was to be served cumulatively was within her Honour’s discretion.
As far as the second aspect of totality, identified by Doyle CJ in R v E, AD, is concerned, the question before the Judge and notwithstanding that the individual terms of imprisonment may have been within the appropriate ranges, was whether the aggregate itself or the extended non-parole period was so “crushing” as, in all the circumstances, to call for intervention by way of some reduction on the grounds of mercy.
The total period of imprisonment imposed by the Judge is a lengthy one, perhaps severe, although, as I have indicated, the sentence she imposed is not manifestly excessive. The appellant is in his early 40s and, provided his behaviour whilst in custody warrants the granting of parole, he should be released on parole in his late 40s. On the assumption that her Honour’s sentence were not to be interfered with, the total period to be served and the extended non-parole period contemplate that the appellant should be released at a time when he will have a substantial proportion of his expected lifespan still ahead of him.
I am not satisfied that the total period to be served, should it stand, is one that calls for a reduction on the basis that it would leave the appellant without meaningful prospects for rehabilitation and without hope for the future so as to be crushing.
I would dismiss the appeal.
LOVELL AND HINTON JJ.
Introduction
On 3 June 2014, Mr Smoker, the appellant, walked into the Sip ‘n’ Save Liquor store at O’Sullivans Beach. He was wearing a baseball cap and dark glasses in an endeavour to hide his face. He was also carrying a large knife. The owner of the store, Mr Pohl, was working that day. The appellant approached him, thrust the knife toward him and said, “Give me your fucking cash or I will stab you in the face, dog”. The appellant then forced Mr Pohl to walk backwards into a storeroom. There Mr Pohl was forced to retrieve $1700 from his safe and give it to the appellant who had all the while held the knife close to Mr Pohl’s face. The appellant then demanded to know where the rest was, referring to money kept on the premises. He marched Mr Pohl to the till at the front of the store, which was then opened and a further $600 taken. The appellant then took the coin drawer from the till and threw it at Mr Pohl’s head before decamping.
Two days later the appellant was arrested. He was charged with aggravated robbery. Sometime later, after a four day jury trial, he was found guilty of that offence 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 imprisonment with a non-parole period of two years and six months, imposed on the appellant by the Magistrates Court on 22 December 2014 for unrelated offending, backdated to commence on 6 June 2014 when he was taken into custody. In sentencing the appellant for the aggravated robbery the sentencing Judge extended that non-parole period by six years. Accordingly, as at the conclusion of being sentenced for the aggravated robbery, the appellant was required to serve a total of twelve years and six months imprisonment with a non-parole of eight years and six months commencing 6 June 2014.
The appellant now appeals against the sentence he received for the offence of aggravated robbery. He does not argue that the sentence of eight years imprisonment with a non-parole period of six years was, taken in isolation, manifestly excessive, but he does contend that to simply add that sentence and non-parole period to the sentence and non-parole period he was already serving, with the overall consequence as we have referred to above, was to impose a sentence that was manifestly excessive in that the totality was crushing. That is, he contends that having regard to the totality principle the sentencing Judge should have reduced the sentence she imposed for the aggravated robbery and thereby reduced the totality of the period of imprisonment he is to serve.
We would dismiss the appeal. Our reasons follow.
The Appellant’s Personal Circumstances and Antecedents:
The sentencing Judge summarised the appellant’s personal circumstances as follows:
I turn to matters personal to you. I heard submissions from your counsel, Ms Demertzis. You were raised by your mother for many years on her own. She commenced a relationship with your stepfather when you were a young child. Your stepfather subjected you to extreme physical punishment. Your distress was compounded when at the age of 13 you were the victim of ongoing sexual abuse by your maternal uncle. At the age of 14 you left home for a period of time. When you returned to your family home you were not believed about the sexual abuse you had suffered. This led you to misuse alcohol and ultimately drugs.
Your schooling was interrupted and you did not complete past year 9. You have had intermittent work after you left school at fast food chains. You have a long and sustained criminal history. You have spent lengthy periods of time incarcerated in particular in 1997, 2001, 2008 and you have been serving a sentence since June 2014.
You were previously in a long-term relationship with Ms McDonald. There is one child of that relationship, a son born in May 2012. For a period of about 12 months after his birth, you were in a committed relationship with Ms McDonald and the two of you were committed to raising your son. This was a brief but significant period of stability in your life. However, that relationship ended towards the end of 2013 and ultimately resulted in an intervention order being imposed in respect of Ms McDonald. However, your son remains important to you and it has caused you significant distress that you have not had any contact with your son since you were remanded in custody in June 2014.
The appellant’s criminal history extends to over seven pages. His offending commenced as a youth in late 1992. Leniency in the form of suspended sentences was extended to him in his early years of offending. He did not respond. He has subsequently served periods of imprisonment. His offending displays an attitude of total disregard for the authorities and the courts. Property and dishonesty offences feature routinely. Driving and drug offences also figure regularly and offences of violence are not unknown. Of particular relevance is a conviction in 2001 in Western Australia for robbery whilst armed which resulted in a head sentence of six years imprisonment being imposed.
As mentioned, the sentencing Judge had regard to the sentence that the appellant was then currently serving being a sentence of imprisonment for 4 years and 6 months, with a non-parole period of 2 years and 6 months. Her Honour observed that the sentence she was to impose “will need to be cumulative on that sentence, as it is a separate incursion into crime and I am required to review and extend your non-parole period.”
The sentencing Judge had the benefit of the sentencing remarks of the Magistrate who imposed the sentence of 22 December 2014. Those remarks indicate that the sentence was imposed for a range of offences committed between August 2011 and June 2014. We have reproduced the offences and the related sentences as imposed by the Magistrate in tabular form below.
Offence Date
Offence
Sentence
1 August 2011
1. Dishonestly take property
2. False information or document to second-hand dealer
3. Breach Bail
Conviction without further penalty on all counts. (Credit given for three months in custody)
28 November 2012
Breach of Bond
No order made. (Credit given for five weeks in custody)
9 January 2013
Dishonestly take property
1 month imprisonment
14 January 2013
1. Dishonestly take property
2. Possess article to commit offence
4 months imprisonment
11 February 2013
Damage Building
1 month imprisonment
14 February 2013
1. Breach Bail
2. Dishonestly take property
3. Disorderly behaviour
4. Damage Property
5. Commit Assault (Aggravated)
6 months imprisonment
20 February 2013
Breach Bail
1 month imprisonment
1 March 2013
Breach Bail
1 month imprisonment
10 April 2013
1. Breach Bail
2. Dishonestly take property (x2)
3. Commit Assault (Basic) (x2)
4. Assault Police
6 months imprisonment
1 May 2013
1. Driving without due care
2. Unlicensed
3. Drive with excess blood alcohol
1 month imprisonment for count 2 and a fine of $1,500 for counts 1 and 3. License disqualification also imposed.
2 June 2013
Damage property
2 months imprisonment
21 August 2013
Damage property
2 months imprisonment
25 August 2013
1. Breach Bail
2. Contravene Intervention Order
3. Damage property
4 months imprisonment
17 November 2013
Contravene Intervention Order
4 months imprisonment
1 June 2014
1. Fail to give way
2. Unlicensed
3. Unregistered and Uninsured
4. Drive Vehicle contrary to defect notice
5. Drive with excess blood alcohol
1 month imprisonment for count 2. For the remaining counts a fine of $1,500. License disqualification also imposed.
5 June 2014
1. Serious Criminal Trespass
2. Aggravated Assault (x2)
3. Attempted Theft
18 months imprisonment
The sentences of imprisonment recorded in the table above, with the exception of that for the offending of 5 June 2014 and counts 2-4 of the offending on June 1 2014, are notional sentences nominated by the sentencing Magistrate.[9] For that offending the Magistrate utilised s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) and imposed one penalty of three years imprisonment to commence 6 June 2014. The 18 months imprisonment imposed for the offending of 5 June 2014 was ordered to be served cumulative on the three year sentence of imprisonment. That resulted in a head sentence of four years and six months imprisonment. As mentioned, a non-parole period of two years and six months was set.
[9] Such approach was appropriate; see R v Cattell [2010] SASCFC 18 at [14] (Doyle CJ, Bleby and White JJ agreeing).
Four points should be made here; first, the aggravated robbery subject of this appeal occurs two days prior to the last group of offences, those committed on 5 June 2014, for which the appellant was sentenced in the Magistrates Court. Second, experience in the criminal courts suggests that the time frame within which the offending of 1, 3 and 5 June 2014 occurred, and the nature of that offending, is such as to alert a sentencing court to the possibility of a common explanation. That, in turn, suggests that a measure of concurrency in sentencing for those offences may be appropriate.[10] Third, the sentence imposed is lenient. That leniency can be seen in particular in the sentence imposed for the offending of 5 June 2014 having regard to the sentencing yardstick set for the ordinary case of serious criminal trespass in R v Delphin[11] and to the fact that the appellant’s antecedents include convictions for building breaking with intent to commit a felony, break and enter, burglary, and attempted break and enter a building. Admittedly some of those prior offences are dated, but the number remains more than sufficient to conclude that the appellant’s blameworthiness is significantly greater in the case of his offending of 5 June than that of the offender who commits his or her first serious criminal trespass, and, further, that the ordinary sentence will not provide an adequate specific deterrent. Fourth, the non-parole period as a proportion of the head sentence set by the Magistrate may be considered low.
[10] R v Kane [2013] SASCFC 149.
[11] (2001) 79 SASR 429 at 440-1 (The Court); see also, R v Cattell [2010] SASCFC 18 at [27]-[28] (Doyle CJ, Bleby and White JJ agreeing).
The Magistrate had before him a report from Mr Fugler, a clinical psychologist, in addition to a Treatment Intervention Court Eligibility Assessment report and a pre-sentence report. The reports suggested to the Magistrate that the appellant may have arrived at the stage where he was “tiring of his offending ways” and would benefit from an “extended period of time on parole”. Unfortunately the reports were not made available to the sentencing Judge. It was accepted that counsel for the appellant did not make a forensic decision to withhold the reports from the Judge. Both parties agreed that this Court should receive the reports.
The sentencing standard for aggravated robbery involving an offensive weapon
Section 137(1) of the Criminal Law Consolidation Act 1935 (SA) creates the offence of robbery. That section also differentiates between the commission of that offence as a basic offence and as an aggravated offence. The commission of the basic or non-aggravated form of the offence is punishable by imprisonment for up to 15 years, whilst commission of the offence in its aggravated form is punishable by imprisonment for life.
In its basic form the offence mirrors the old offence of robbery with violence.[12] In its aggravated form, if the circumstances of aggravation involve the use of an offensive weapon, it mirrors the old offence of armed robbery.[13] In R v Gannon Kourakis J, as he then was, said:[14]
Section 137 of the Criminal Law Consolidation Act 1935 (SA) (the Act) rationalised the common law of robbery which had been given statutory force by ss 155 and 158 of the Act before the amendments effected by the Criminal Law Consolidation (Offences of Dishonesty) Amendment Act 2002 (SA) (No 26). I will refer to those sections respectively as the repealed s 155 and s 158.
Repealed s 155 provided a maximum penalty of 14 years for the offence of simple robbery. Repealed s 158 provided for a maximum penalty of life imprisonment for any person who, being armed, robs or assaults with intent to rob (armed robbery), or who together with others robs, or assaults with intent to rob (robbery in company), or who robs any person and at the time of or immediately before or immediately after wounds, beats, strikes or uses any other personal violence (robbery with violence).
Even though repealed s 158 imposed a maximum of life imprisonment for both armed robbery and robbery with violence, sentences for the latter were generally significantly less than sentences imposed for the former and were generally closer to sentences imposed for simple robbery. This Court has always maintained a marked distinction between sentences imposed for robbery, and those imposed for robbery with violence.
The 2002 legislative amendments preserved that distinction. Section 137 of the Act delineates between basic and aggravated offence in a way which exposes offences of simple robbery and robbery with violence to a maximum penalty of 15 years imprisonment, but retains a maximum of life imprisonment for armed robbery and robbery in company, by treating the use of weapons, and offending with others, as circumstances of aggravation.
[Footnotes omitted.]
[12] R v Gannon (2012) 113 SASR 1 at [22]-[23] (Kourakis J).
[13] R v Gannon (2012) 113 SASR 1 at [22]-[23] (Kourakis J).
[14] (2012) 113 SASR 1 at [22].
As mentioned the appellant was found guilty of aggravated robbery. The circumstance of aggravation was his use of an offensive weapon.[15] The gravamen of his offending was his threatened use of potentially deadly force to steal money from a vulnerable member of the community operating a small business. As the sentencing Judge noted, “there is no doubt that this would be a terrifying incident to Mr Pohl.”
[15] Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(b).
There is a long history of judgments in this Court that call for and impose severe sentences for the offence of aggravated robbery committed using an offensive weapon (formerly the offence of armed robbery) upon vulnerable businesses. The reasons given for doing so are set out in the brief and incomplete survey of those judgments undertaken below. They remain just as relevant today. Further, those judgments regularly re-affirm the importance of sentencing courts adhering to the standard set by this Court, bearing in mind the paramountcy to be afforded general deterrence and the need to provide assurance to the public “that the courts are endeavouring to protect them from becoming the victims of crimes involving the use of weapons”.[16]
[16] R v Thomson (Unreported, South Australian Supreme Court, King CJ, 21 May 1991).
The starting point in considering the ordinary sentence for aggravated robbery that answers the description of what was formerly an armed robbery is The Queen v Shannon.[17] In that case the appellant was sentenced to cumulative terms of six years imprisonment for two armed robberies committed seven days apart, in addition to two years imprisonment for the offence of pharmacy breaking with intent to be served concurrent with the term imposed for the second armed robbery. Those sentences were upheld on appeal, despite the appellant having made a full confession to police and pleaded guilty. King CJ said:[18]
The armed hold ups for which the appellant was sentenced were undoubtedly grave. They were carried out in company. The appellant had two companions on the first occasion and one companion on the second occasion. The appellant held the gun and did the talking. It was a terrifying experience for the victims. The sum stolen on the first occasion was $1,101.53 and on the second occasion $4,035.64. The appellant had a disturbed and particularly unfortunate youth. He became addicted to drugs and at the time of the commission of these crimes was addicted to heroin. He has a considerable record of previous offences, mainly arising directly or indirectly out of the use of drugs. There is no prior conviction involving the use of weapons, but there are three prior convictions for breaking and entering. There are indications of good qualities in the appellant, but they appear to have been submerged by the problems and pressures associated with drug addiction.
[17] (1979) 21 SASR 442.
[18] (1979) 21 SASR 442 at 460-1.
Zelling J opined:[19]
In my opinion, the trial Judge’s sentences were correct. Armed robbery can never be taken lightly. It is a serious and increasing evil in this community. The sentences imposed by the learned Judge were the least that any Judge could reasonably impose in the circumstances of this case, even giving effect to the fact of the pleas of guilty by the accused. This is one of the cases, and there will be many of them, where a plea of guilty standing by itself means little.
[19] (1979) 21 SASR 442 at 461.
And Cox J held:[20]
That puts the sentences at large. However, it does not necessarily follow that the sentences that the learned Judge imposed were excessive. He speaks in his report of the “considerable leniency I extended to the applicant,” irrespective of his plea, and in my view his words were aptly chosen. The appellant has a most unfortunate background and it is impossible not to feel a great deal of sympathy for him. It is obvious that in many ways his behaviour expresses a deplorable adolescent environment and a number of personality problems for which he cannot be held wholly to blame. However, the fact remains that these were two separate armed robberies, one of a post office and the other of a pharmacy, of a type that has now become prevalent in this State. There was also a count of pharmacy breaking with respect to which the Judge imposed a concurrent sentence of two years’ imprisonment. Making the best allowance possible for the appellant's pleas of guilty, but at the same time having in mind the factor of deterrence which must, I think, predominate in these armed hold up cases now, the Court could not in my opinion properly impose a sentence of less than six years imprisonment on each of the armed robbery charges. There are no grounds upon which, consistently with established principle, those two sentences could be made wholly ·or partly concurrent with one another, and this is not a case in which the length of the aggregated sentences compels some kind of final revision.
[20] (1979) 21 SASR 442 at 462.
Later that same year, 1979, in The Queen v Spiero, the Court of Criminal Appeal was again required to consider the appropriate sentence in a case of armed robbery.[21] Spiero was a case involving the robbery of a chemist by two armed men, one being the appellant, with the assistance of a third who was waiting in a car nearby. The sentencing Judge determined that a sentence of eight years imprisonment was appropriate but increased it to ten so as to absorb another sentence of two years imprisonment for an unrelated offence, those sentences to be served concurrently. The sentencing Judge’s reason for proceeding as he did was because as at that time a court could not impose more than two consecutive sentences and he was aware that the appellant was yet to be sentenced for further serious offending.[22] This was held to constitute an error of principle. In sentencing afresh King CJ said:[23]
… It must be made clear beyond misunderstanding that when a person engages in robbery, while armed with a weapon, he can expect, when apprehended and convicted, a long sentence of imprisonment. Armed robbery is a crime which leaves little scope for leniency even when mitigating factors are present. In this case mitigating factors are few. The appellant has a criminal record. He is addicted to heroin. One feels sympathy for a person who has become entangled in drug addiction, but the courts cannot treat addiction as an excuse, or even a mitigating factor, in relation to serious crime. Those who are addicted to drugs must understand that if they allow their addiction to lead them into serious crime, they must expect to receive the same severe punishment as would be received by others.
In my opinion the sentence of eight years which the learned Judge thought appropriate, apart from the s 310 problem, is the proper sentence.
[21] (1979) 22 SASR 543.
[22] Criminal Law Consolidation Act 1935 (SA) s 310.
[23] (1979) 22 SASR 543 at 548-9.
Importantly, that conclusion, with which Walters and White JJ agreed, necessarily meant rejecting the submission made by counsel for the appellant that the sentence of eight years contemplated by the sentencing Judge would be longer than the standard for armed robbery.[24]
[24] The Queen v Spiero (1979) 22 SASR 543 at 548 (King CJ).
Approximately two years later, in The Queen v Dorning, the appellant was sentenced to imprisonment for six years on each of two counts of assault with intent to rob, each of those sentences to be served cumulatively but concurrently with five year terms imposed for each of two counts of armed robbery.[25] The effective sentence was, therefore, one of twelve years imprisonment. The circumstances of the offending was summarised by the sentencing Judge in the following terms:[26]
On 25th June, 1980, you held up the ticket box attendant at a drive-in theatre at Mitchell Park, and robbed him of $70. You did this by threatening him with a pistol at very close quarters. Two days later you tried the same thing at a drive-in bottle department of a hotel on the Anzac Highway at Plympton, but the attendant argued with you and you eventually ran away, without getting any money. The next night you went to the bottle department at another hotel at Lockleys, and this time events took a more serious turn. Again you were carrying a pistol and, when the barman was a little tardy in obeying your direction, you fired the gun. You then stole about $200 and left. The fourth and last crime in the series was on 30th June, when you held up the proprietors of a service station at Glandore. You held a pistol within arm's length of one of the men and, when he failed to respond with the promptness you demanded, you fired two shots, or at least two shots, close to his head. This time you were caught and, when you were questioned by the police, you admitted all four offences.
[25] (1981) 27 SASR 481.
[26] The Queen v Dorning (1981) 27 SASR 481 at 482 (Walters, Zelling and Williams JJ).
On appeal the appellant argued that all four sentences should have been made concurrent. The sentencing Judge had referred to “the standards set by the Full Court in recent cases suggested a sentence in the case of anyone of these crimes, of six to eight years.”[27] On appeal the Court of Criminal Appeal noted that the sentencing Judge’s observation drew upon the decisions of Shannon and Spiero discussed above. The Court added:[28]
We think that the decisions in Shannon and Spiero fully support the learned sentencing Judge's remark that, even without the firing of a pistol, the standards set by the Full Court suggest a sentence in the case of armed robbery of six to eight years' imprisonment.
[Footnotes omitted.]
[27] The Queen v Dorning (1981) 27 SASR 481 at 483 (Walters, Zelling and Williams JJ).
[28] The Queen v Dorning (1981) 27 SASR 481 at 484 (Walters, Zelling and Williams JJ).
The Court then stated that the “sentencing Judge could not properly have imposed any lesser sentences than he did”.[29]
[29] The Queen v Dorning (1981) 27 SASR 481 at 485 (Walters, Zelling and Williams JJ).
On the same day as judgment was delivered in Dorning the Court also delivered judgment in The Queen v Knight.[30] That was an appeal against a sentence imposed for three counts of armed robbery. The Court said:[31]
Anyone who happens to survey the criminal scene in this State over recent years must be alive to the alarming and appalling frequency of armed robberies involving the use of firearms. The community at large, and especially persons whose occupations render them vulnerable to armed robberies, are entitled to expect that this Court will deal with robberies, committed at gun-point, in such a manner as will show its abhorrence of this type of crime and as will make it plain to those who would indulge in violence of this kind that they can expect condign punishment if they are minded to follow such a criminal path. It seems to us that the most effective way in which this Court can demonstrate not only its own abhorrence, but that of the general public as well, of this sort of crime is by imposing truly deterrent sentences, which must necessarily take priority over any consideration of the rehabilitation of the offenders.
[30] (1981) 26 SASR 573.
[31] The Queen v Knight (1981) 26 SASR 573 at 574 (Walters, Zelling and Williams JJ).
The Court then referred to what fell from Cox J in The Queen v Spiero at first instance[32] and to what fell from King CJ on appeal[33] with approval. It added:[34]
In the light of these particularly apt observations, there can be no doubt about the sentencing practice of this Court in dealing with armed robberies involving the use of firearms. In Spiero's case, a sentence of eight years' imprisonment was held to be the appropriate penalty. And, as it seems to us, for the protection of the community and of those likely to be exposed to the fear and danger involved in armed hold-ups, the Court cannot afford to treat planned and premeditated robberies, carried out at gun-point, with any measure of leniency, except in very extraordinary circumstances. Even in the case of a comparatively young first offender of previously good character, where ordinarily the prime concern is rehabilitation, we believe an exception should be made for the serious crime of armed robbery. The reformative element must not be permitted to blind the Court to the necessity of protecting the public.
[Footnote omitted.]
[32] After referring to statistics demonstrating the prevalence of the offence of armed robbery, Cox J had said, “It appears to be an area in which the deterrent aspect must predominate in sentencing, even at the expense of considerations personal to the offender. Those who are tempted to commit armed robberies in this State would be wise if they were to bear this in mind”; The Queen vSpiero (1979) 22 SASR 543 at 548.
[33] Quoted above at [54].
[34] The Queen v Knight (1981) 26 SASR 573 at 575 (Walters, Zelling and Williams JJ).
Whilst these remarks were made in relation to an armed robbery involving the use of a firearm, they apply no less forcefully where the offensive weapon is a knife.
In 1987, in The Queen v Dube and Knowles, the Court of Criminal Appeal heard two Crown appeals against sentences imposed for armed robbery simultaneously.[35] The argument advanced by the Crown in each case was that the sentences imposed were so low as to warrant intervention by the Court in order that adequate standards of punishment be maintained. To make good this argument the Crown referred to material demonstrating the harm sustained by victims of armed robbery and the cost to the community more generally of such offending. In the light of the submission and supporting material, the Chief Justice, with whom Bollen and Von Doussa JJ agreed, said:[36]
The first contention of the Solicitor-General, who appeared as counsel for the Attorney-General, was that the hitherto prevailing standards of punishment for the crime of armed robbery are inadequate and ought to be increased. The prosecution adduced evidence before the learned sentencing judge as to the adverse affect of armed robbery upon the victims and innocent people who become embroiled in it. There was also evidence as to the financial cost of armed robberies to financial institutions and to the community generally. Judges, as members of the community, are well aware, and indeed share, the disquiet, even alarm, which is widespread in the community in consequence of the prevalence of this type of crime. The evidence led by the prosecution in this case merely reinforces the view long held on this Court that armed robbery presents a serious threat to the wellbeing of the community and that the punishments imposed must reflect that fact. It was pointed out in this Court as long ago as 1979 that this is an area of crime in which the deterrent aspect of sentencing must predominate over all other aspects and must be given affect to, even at the expense of considerations personal to the offender. The Queen v Spiero (1979) 22 SASR 543 esp. at 548. That theme has run through all subsequent cases decided in this Court of Criminal Appeal with respect to armed robbery and the punishments imposed have been consistently severe.
[35] (1987) 46 SASR 118.
[36] The Queen v Dube and Knowles (1987) 46 SASR 118 at 119.
Later that same year the Court of Criminal Appeal was again confronted by a Crown appeal against sentence imposed for the offence of armed robbery. King CJ, with whom Matheson and Bollen JJ agreed, said:[37]
It has been said over and over again in this Court that armed robbery is a crime which must be viewed with the utmost seriousness. It puts the victims in fear and sometimes, although not in the present case, in danger. The fear is not confined to the immediate victims of the particular crime. The prevalence of armed robbery in the community puts in fear and causes continuing anxiety to a considerable section of the community whose employment requires them to be in charge of money and other property, particularly where that property consists of drugs. Those who work in establishments of that kind, and particularly those who work in pharmacies and other places where drugs are stored, are entitled to look to the courts for protection and are entitled to expect that the courts will impose punishments which operate, so far as punishments can so operate, as an effective deterrence to persons who are minded to rob such establishments whilst armed.
[37] The Queen v Brett (1987) 140 LSJS 343 at 344.
A year later in The Queen v Prendergast,[38] the Court of Criminal Appeal discerned a clear pattern in sentences imposed for the offence of armed robbery. King CJ stated:[39]
… The standard of penalties for armed robbery applicable since the commencement of sec. 302 is in the range of 8 to 12 years. Any standard range of penalties can apply, of course, only to the general run of cases.
[38] (1988) 147 LSJS 486.
[39] The Queen v Prendergast (1988) 147 LSJS 486 at 487-8; See also, DPP (SA) v Fermaner (1994) 61 SASR 447 at (448-9).
Prendergast involved the robbery of a bank by two men, one of whom was armed with a shotgun that was discharged during the course of the robbery. A third man drove the getaway car. The reference to s 302 of the Criminal Law Consolidation Act 1935 (SA) is a reference to a statutory amendment made in 1986 obliging sentencing courts to fix sentences having regard to remissions that prisoners would earn under the Correctional Services Act 1982 (SA). The result was that sentences increased,[40] which, in turn, explains the difference in standard identified in The Queen v Spiero when compared with that in The Queen v Prendergast. With the truth in sentencing amendments of 1994[41] the standard returned to six to eight years.[42] It has remained so ever since.[43]
[40] The change to the sentencing regime introduced in 1986 was explained in The Queen v Dube and Knowles (1987) 46 SASR 118 at 120-1 (King CJ).
[41] Statutes Amendment (Truth in Sentencing) Act 1994 (SA).
[42] R v Drumgoon (Unreported, Supreme Court of South Australia, Cox J , Perry J , Williams J, 13 December 1995); R v Hooper (1995) 64 SASR 480.
[43] See, for example, R v Rooke [1998] SASC 6738 (19 June 1998); R v Lumsden [2000] SASC 49;
It is in the light of this history, incomplete as it is, that in R v Place Doyle CJ, Prior, Lander and Martin JJ said:[44]
This Court has said on a number of occasions that armed robbery on premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects that appear to be weapons are used to threaten the immediate victims are prevalent crimes committed against vulnerable victims and are crimes in respect of which general deterrence and the protection of the public are of particular importance. This Court has emphasised that such crimes of armed robbery are frequently committed by persons addicted to and affected by alcohol or other drugs who commit the crimes in order to obtain funds to meet their addiction. For these underlying reasons, this Court has said that, generally speaking, the standard of penalty appropriate for those types of armed robberies committed by those types of offenders is in the order of six to eight years imprisonment.
[44] (2002) 81 SASR 395 at 429.
Importantly their Honours added:[45]
The types of armed robberies to which the standard of six to eight years applies can be described in broad terms only. The range of both personal and objective circumstances associated with crimes of armed robbery is such that it is inappropriate to attempt to be any more precise. It is the circumstances of a particular offence and offender that determine whether the standard is applicable. The importance of carefully assessing those circumstances should not be diminished by the use of labels or by attempting to create categories of offending.
[45] (2002) 81 SASR 395 at 429.
This standard has repeatedly been affirmed by this Court as has the importance of its maintenance.[46] It explains the appellant’s concession in this case, rightly made in our view, that the sentence imposed by the sentencing Judge for the offence of aggravated robbery, viewed in isolation, could not be criticised. As mentioned the appellant’s complaint is that having regard to the totality principle the sentencing Judge should have reduced the sentence she imposed. That complaint requires consideration of the circumstances in which it is appropriate to reduce an otherwise appropriate sentence, or order that an otherwise appropriate sentence be served concurrently in part or in whole with another sentence, in the application of the operation of the totality principle. To that issue we now turn.
[46] R v Dwyer (2015) 121 SASR 587; R v Wilson (2010) 106 SASR 502; R v Eleche [2014] SASCFC 73; R v Jackson [2014] SASCFC 118; R v Scott [2014] SASCFC 137; R v Lundberg [2012] SASCFC 122; R v Harradine & Harradine [2012] SASCFC 103; R v Kane [2013] SASCFC 149; R v Copeland[No.2] (2010) 108 SASR 398; R v Hutchins [2009] SASC 275; R v Randell-Smith and Davi (2008) 100 SASR 326. Those who may be minded to commit a well-planned and large scale armed hold-up engage in offending of a scale more serious again and can expect a more severe sentence; R v Place (2002) 81 SASR 395 at [108] (Doyle CJ, Prior, Lander and Martin JJ); R v Lundberg [2012] SASCFC 122 at [1]-[4] (Kourakis CJ). Equally, as Kourakis J remarked in the passage reproduced from his judgment in R v Gannon in the body of this judgment above, there is a marked distinction between aggravated or armed robberies and robberies that answer the old description of robbery with violence; as to sentencing for robberies answering the description of the old offence of robbery with violence, see R v McGlynn [2011] SASCFC 74; R v Betts [2011] SASCFC 27. Here the real point is as King CJ made in R v Van Huizen, (Unreported, Supreme Court of South Australia, King CJ, 23 February 1990) (Prior and Duggan JJ agreeing), namely, that it is important that the “sentences which the Court imposes bear a proper proportion to the degree of seriousness of the offending and, in particular, to that offending in relation to other types of offending of a more serious kind.”
Totality
In Mill v The Queen, a unanimous High Court said:[47]
The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”
[47] (1988) 166 CLR 59 at 62-63; See also, Pearce v The Queen (1998) 194 CLR 610 at [45] (McHugh, Hayne and Callinan JJ).
So stated the principle acknowledges that in sentencing for more than one offence each representing separate incursions into criminality, the aggregation of such sentences consistent with principle carries with it the risk of the imposition of an overall sentence that is disproportionate to the overall offending and the circumstances of the offender. That the concept of proportionality underpins this principle was made clear by the High Court in its approval[48] of this Court’s approach in R v Knight.[49] In Knight this Court said:[50]
[I]t seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts. To use the language of Lord Parker L.CJ. in Reg. v. Faulkner , ‘at the end of the day, as one always must, one looks at the totality and asks whether it was too much’.
[48] (1988) 166 CLR 59 at 63.
[49] (1981) 26 SASR 573.
[50] (1981) 26 SASR 573 at 576 (Walters, Zelling and Williams JJ).
To similar effect in R v E, AD, Doyle CJ said:[51]
… In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy. Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed.
[51] (2005) 93 SASR 20 at [38]; See also R v Place (2002) 81 SASR 395 at 425-6 (Doyle CJ, Prior, Lander and Martin JJ); R v Randall-Smith and Davi (2008) 100 SASR 326 at [104]-[106] (Gray and Layton JJ).
The principle of proportionality was variously stated in Veen v The Queen [No 2].[52] One variant was that a sentence may not be disproportionate to the gravity of the crime considered in the light of its objective circumstances.[53] Expressed in that way the principle was in part responsible for the now discredited two staged approach to sentencing.[54] In AB v The Queen,[55] McHugh J explained that the two –staged approach to sentencing was in conflict with the joint judgment in Veen v The Queen [No 2]. He said:[56]
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] where Mason CJ, Brennan, Dawson and Toohey JJ said:
“However, sentencing is not a 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.”
[Footnote omitted.]
[52] (1988) 164 CLR 465 at 472-3 (Mason CJ, Brennan, Dawson and Toohey JJ) 485-6 (Wilson J), 490-491 (Deane J), 496 (Gaudron J).
[53] Veen v The Queen [No 2] (1988) 164 CLR 465 at 472 (Mason CJ, Brennan, Dawson and Toohey JJ), 485-6 (Wilson J), 490-1 (Deane J), 496 (Gaudron J).
[54] Bugmy v The Queen (1990) 169 CLR 525 at 535-6 (Dawson, Toohey and Gaudron JJ). See also AB v The Queen (1999) 198 CLR 111 at [13]-[19] (McHugh J) and the treatment of R v Raggett (1990) 101 FLR 323.
[55] (1999) 198 CLR 111.
[56] AB v The Queen (1999) 198 CLR 111 at [15].
The two staged approach to sentencing treated the principle of proportionality as operating as a limit on the sentencing discretion and no more. This involved determining the outer limit of a sentence by considering the gravity of the offender’s conduct as against the maximum penalty without reference to subjective factors. Thereafter, the sentence could only be revised down to take account of subjective factors. However, properly understood the joint reasons in Veen v The Queen [No 2] give the principle of proportionality a dual role, it both operates as a limit upon the sentencing discretion and provides the method by which the appropriate penalty in a given case is to be determined. Hence the task of a sentencing court is described in Veen v The Queen [No 2] as being to determine the appropriate proportionate sentence[57] and the difference between the majority and minority in Veen [No 1][58] is explained on the basis of “differing assessments of what was the appropriate proportionate sentence”.[59] So understood the appropriate sentence in a given case is one that is proportionate to the gravity of the crime considered in the light of all relevant circumstances. The appropriate proportionate punishment is then one that fits the crime and the offender. That accords with the instinctive synthesis approach to determining sentence.[60]
[57] Veen v The Queen [No 2] (1988) 164 CLR 465 at 474 (Mason CJ, Brennan, Dawson and Toohey JJ).
[58] (1979) 143 CLR 458.
[59] Veen v The Queen [No 2] (1988) 164 CLR 465 at 474 (Mason CJ, Brennan, Dawson and Toohey JJ).
[60] Wong v The Queen (2001) 207 CLR 584 at 611-612 (Gaudron, Gummow and Hayne JJ); Markarian vThe Queen (2005) 228 CLR 357 at 373-4 (Gleeson CJ, Gummow, Hayne and Callinan JJ); Munda v Western Australia (2013) 249 CLR 600 at [59] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).
The totality principle is related to the proportionality principle. In AB v The Queen Hayne J observed:[61]
If an offender is sentenced for a number of offences it is necessary to examine both the particular sentences imposed for each offence and the overall effective sentence reached as a result of orders for cumulation or concurrence. It is in both the individual sentences and the overall sentence that the considerations relevant to sentencing must find their reflection.
[61] (1999) 198 CLR 111 at [121].
This suggests that the principle of proportionality is invoked at two points in the sentencing process where the sentencing court is sentencing an accused for a number of offences. That is, the principle of proportionality operates as a limit which a sentence for an offence or single episode of offending cannot exceed and serves to guide the court in arriving at the appropriate sentence in all the circumstances. Then, in the application of the totality principle, the proportionality principle is invoked a second time, but on the second occasion it is applied in considering whether the aggregation of sentences imposed for a series of offences or episodes of offending, which in isolation cannot be considered disproportionate, are nonetheless in aggregate disproportionate to the offender’s overall criminality.[62]
[62] Postiglione v TheQueen (1997) 189 CLR 295 at 308 (McHugh J) citing R v Holder [1983] 3 NSWLR 245 at 260 (Street CJ) with approval.
That said, in R v E, AD Doyle CJ referred to the principle of totality as having a second aspect, one different to its function as a check to ensure that the overall sentence was just and appropriate. Doyle CJ described this second aspect as operating to ameliorate an appropriate sentence where it is “so ‘crushing’ as to call for some reduction in the aggregate”.[63] For this proposition Doyle CJ cited R v Rossi.[64] In that case King CJ referred to the totality principle having application where “the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect”.[65] King CJ cited The Queen v Brett as authority for the proposition advanced.[66] That case concerned an appeal against sentence for three separate crimes of armed robbery. In sentencing afresh, manifest inadequacy having been established, the Chief Justice determined that anything less than a sentence of seven and a half years for each offence would be inadequate and that the offender could not complain if those sentences were made cumulative – “if a person repeats his offending, he can only expect to be punished for each of the crimes he commits”.[67] So much may be accepted. However, the Chief Justice continued:
But this Court is, mercifully, empowered to have regard to the total effect of the sentences which are imposed. The Court’s wish to act in a merciful way would incline it to shrink from imposing a total sentence of twenty-two and a half years. I think what is called the principle of totality enables us to mitigate what strict justice might indicate in a case such as this.
[63] R v E, AD (2005) 93 SASR 20 at [37].
[64] (1988) 142 LSJS 451.
[65] R v Rossi (1988) 142 LSJS 451 at 453.
[66] (1987) 140 LSJS 343.
[67] The Queen vBrett (1987) 140 LSJS 343 at 345 (King CJ, Matheson and Bollen JJ agreeing).
Nowhere does the Chief Justice indicate that the totality principle is invoked because the sentence contemplated, if imposed, would deprive the appellant of the expectation of a useful life upon release as is often said to be indicative of a “crushing” sentence.[68] In our view, although couched in terms of the extension of mercy, King CJ’s approach is, with respect, nothing more than an application of the principle of proportionality as explained above. The metaphor of the Court shrinking from the imposition of a sentence equal to the aggregation of the sentences determined in isolation for distinct episodes of offending makes plain that the aggregated result is too much – that is, such outcome does not fit the offender and the offending viewed globally. Put slightly differently, such outcome is not necessary to achieve the purposes of punishment having regard to the offender’s overall criminality. In essence, the process followed by King CJ in The Queen v Brett is precisely that approved by the High Court in Mill v The Queen as quoted above. Whilst no doubt the principle of proportionality was invoked in determining the appropriate penalty for each episode of offending considered in isolation, the inadequacy of so proceeding is exposed when the same principle is applied to the aggregated result considered against the overall criminality.
[68] For example, R v Yates [1985] VR 41.
What is not articulated in The Queen v Brett, and may be overlooked where a court proceeds to determine sentences for each of a series of offences that constitute separate episodes of offending in isolation one from the other, is the fact that once a court has arrived at the appropriate sentence for the first episode of offending and turns to the second, the personal circumstances of the offender relevant to the determination of the appropriate sentence for the second episode of offending necessarily include the fact that he or she is to be subject to the penalty to be imposed for the first episode of offending.[69] The application of the totality principle allows for an adjustment to be made to the available sentence if it is warranted which it will be if the fact of the offender’s having to serve the first penalty imposed in point of time merits an adjustment to the penalty imposed second in time because of the perceived effect of the first penalty on deterrence, rehabilitation and the need to impose condign punishment in determining the appropriate penalty for the second episode of offending. It follows that the totality principle will have no work to do where in sentencing for subsequent offending the sentence does take into account totality, such as where s18A of the Criminal Law (Sentencing) Act 1988 (SA) is invoked and notional sentences not identified,[70] or does take into account the impact and effect upon the offender of the previously imposed sentence or sentences.[71]
[69] Longstanding authority in this Court holds that the existing sentence that a defendant is serving comprises an aspect of his or her personal circumstances which should be taken into account in considering the sentence to be imposed for the current offending; R v Rossi (1988) 142 LSJS 451 at 453 (King CJ); R v Waugh (2005) 93 SASR 274 at 283 (White J); R v Flentjar [2013] SASCFC 11 at [60]-[61] (Sulan J, with whom Kourakis CJ and David J agreed).
[70] R v BRWK (2005) 91 SASR 200 at [24] (Vanstone J); R v Cramp (2010) 106 SASR 304 at [56] (Kourakis J) and the authorities cited therein.
[71] R v Cramp (2010) 106 SASR 304 at [60] (Kourakis J).
Section 18A aside there is, generally speaking, two ways to apply the totality principle.[72] The first is to fix appropriate sentences for each offence then consider questions of cumulation and concurrence.[73] The second is as set out above in Mill v The Queen, i.e. the sentencing court lowers the sentence for the subsequent offence below that which would otherwise have been imposed.
[72] Johnson v The Queen (2004) 78 ALJR 616 at [2], [4]-[5] (Gleeson CJ), [26] (Gummow, Callinan and Heydon JJ); Pearce v The Queen (1998) 194 CLR 610; Mill v The Queen (1988) 166 CLR 59; R v Bagnato (2011) 112 SASR 39.
[73] Pearce v The Queen (1998) 194 CLR 610 at [40] (McHugh, Hayne and Callinan JJ).
Returning to Doyle CJ’s observation in R v E, AD and to the second aspect of the principle of totality, namely, that it may operate to ameliorate an otherwise crushing sentence, the same view has been expressed by the Supreme Court of Western Australia.[74] But, bearing in mind the operation of the principle of proportionality as explained above, when is a sentence crushing? In Jarvis v The Queen, Ipp J answered this question as follows:[75]
It has often been said that where the overall sentence for two or more crimes is “crushing”, that overall sentence should be reduced, even though each of the terms when separately viewed is within an appropriate range. When is a sentence to be regarded as “crushing” and when is “enough” to be regarded as “enough”? It is sometimes said that a sentence falls into this category when it leaves the offender with no hope for the future; or when it would provoke a feeling of hopelessness in the defendant if and when he is released; or where it destroys a reasonable expectation of useful life after release; see Fox and Frieberg, Sentencing, State and Federal Law in Victoria (1985).
[74] Wheeler v Western Australia [2007] WASCA 109 at [5] (The Court). In Johnson v The Queen (2004) 78 ALJR 616 at [22] Gummow, Callinan and Heydon JJ indicated that they doubted that the totality principle is only enlivened in cases where the aggregation of sentences may be described as crushing. It should be noted that the two aspects observed by Doyle CJ in R v E, AD (2005) 93 SASR 20 and the Western Australian Court of Appeal in Wheeler v Western Australia [2007] WASCA 109 are not those referred to by D A Thomas, Principles of Sentencing, (1979) 2nd ed. at 58-59. See also, Seroka v Western Australia [2006] WASCA 284.
[75] (1993) 20 WAR 201 at 205.
Ultimately Ipp J concluded that the “crushing effect of a term of imprisonment is merely one of the mitigating factors that is to be taken into account when determining whether a particular term of imprisonment is proportionate to the criminality evinced”.[76] If that is right, then arguably there is not two aspects to the principle at all. Ipp J concluded:[77]
While the subjective effect of a cumulative sentence upon a particular individual is plainly relevant, it cannot be regarded as of paramount importance. The difficulty expressed in Vaitos (at 301) by O’Bryan J with the concept that the richly deserved sentence should be reduced because the offender may feel crushed by it aptly illustrates its limitations as a mitigatory force.
The overriding principle is accordingly that the aggregate sentence (even when punishment is being imposed for multiple offences) should fairly and justly reflect the total criminality of the offender’s conduct: see Veen v The Queen [No 2] (1988) 164 CLR 465; Evangelista v The Queen; R v Glenister [1980] 2 NSWLR 597 at 612; Lade v Mamarika (1986) 83 FLR 312.
[76] Jarvis v The Queen (1993) 20 WAR 201 at 206-7.
[77] Jarvis v The Queen (1993) 20 WAR 201 at 207.
Murray J arrived at a similar conclusion.[78] The third member of the Court, Anderson J, considered that the justification for lowering a sentence “may not wholly reside in the totality principle” and that it was “not simply a question of proportionateness … but of taking into account the powerful mitigating circumstances that the sentence being imposed is to be a consecutive sentence not capable of taking effect until after the completion of the custodial part of an existing sentence.”[79] He adds that the consecutive sentence is “in itself harsher” than the immediate sentence.[80] This is to take into account the punitive aspect of a sentence in determining what is appropriate in the way of a subsequent sentence to be served consecutively. Anderson J adds that the likelihood of rehabilitation achieved during the period of the first sentence should also be taken into account, that the weight to be afforded retribution in relation to the second sentence will be less, and that similarly less weight will need be afforded general and specific deterrence.[81] In our view, the process that Anderson J describes amounts, with respect, to the practical application of the proportionality principle subject of the first aspect of the totality principle. It ensures that the punishment fits the offence and the offender. That approach is not materially different to the approach of Ipp J with which Murray J agreed. In R v Cramp, Kourakis J, as he then was, appears to embrace Ipp J’s approach.[82] His Honour added the important observation:[83]
It does not follow, therefore, that a reduction will always be necessary where cumulative sentences are imposed. In some cases the persistent offending may require greater punishment and for that reason too no downward reduction will be necessary after conducting the overall review. The application of the totality principle cannot be allowed to lead to a position where, in effect, offenders receive a “bulk discount”. All that is required is that the sentencing judge considers whether the sum of the sentences imposed is disproportionate to the criminality of the underlying offences. If the individual sentences have been framed so that the accumulation does not result in any disproportion, there need not be any reduction.
[78] Jarvis v The Queen (1993) 20 WAR 201 at 212-14.
[79] Jarvis v The Queen (1993) 20 WAR 201 at 216-217.
[80] Jarvis v The Queen (1993) 20 WAR 201 at 217.
[81] Jarvis v The Queen (1993) 20 WAR 201 at 217. See also, R v Cramp (2010) 106 SASR 304 at [58]-[59] (Kourakis J).
[82] (2010) 106 SASR 304 at [58]-[60].
[83] R v Cramp (2010) 106 SASR 304 at [61].
In R v Cramp Kourakis J went on to consider the second aspect of the principle of totality as articulated by Doyle CJ in R v E, AD as reflecting:[84]
… the need to promote rehabilitation. Where there are reasonable prospects of rehabilitation, and the requirements of punishment and deterrence otherwise allow, care should be taken not to impose a sentence which leaves the offender in a state of despair in which he abandons any inclination to reform. Where there are prospects of rehabilitation, a sentence that destroys any real capacity for the offender to reform should not be imposed unless the protection of the community demands it.
[84] (2010) 106 SASR 304 at [51].
However, the weight to be afforded an offender’s prospects of rehabilitation where that offender is to be sentenced for a series of offences constituting distinct episodes of offending, such prospects including his or her likely response to the sentence, is a factor relevant in the application of the first aspect of the totality principle. In our view, here all that the epithet, “crushing”, achieves is to bring more sharply into focus the impact of the punitive experience and the importance that fostering hope may have to attaining rehabilitation. In our view, if the second aspect to the totality principle referred to by Doyle CJ in R v E, AD is to be given any operation different to the application of the proportionality principle subject of the first aspect as explained above, it lies in the extension of mercy of a type beyond leniency that a judge may be moved to grant to an offender in the ordinary course of determining the appropriate sentence overall. If this is to occur it must be upon considerations which are supported by the evidence, which permit objective judgment and which amount to more than an appeal to sympathy. For a court to permit sympathy to cause it to divert from attaching due weight to the purposes of punishment, would be for the court to fail to discharge its duty.
It follows that the extension of mercy where an overall sentence is not disproportionate in the sense discussed above, will be a rare occurrence.
The Reports before the Magistrate
As mentioned the Magistrate had three reports before him when determining sentence. Although the Judge did not have those reports, on appeal the Court received them. We briefly set out the relevant aspects of the reports.
Mr Fugler’s report suggests the explanation for the appellant’s offending lay in the breakdown of his relationship with his former partner and his distress at not being able to see his son as a consequence of an intervention order having been taken out by her. The appellant became depressed and began to drink heavily, to the point where he was not able to afford alcohol but would consume Listerine as a substitute. Mr Fugler opines that the appellant’s offending occurred “during a period of poor psychological functioning in which Mr Smoker was anxious and distressed. Unable to cope with separation and stress, he was using substantial amounts of alcohol in an attempt to reduce tension, self-doubt, and a sense of self-loathing. He then displayed the kind of conditioned anti-social behaviour previously exhibited whenever his emotional needs have not been met (dishonesty, aggression, property damage).”
In the course of discussing his personal history the appellant disclosed that he had been sexually abused by his uncle between the ages of 12 and 14. This appears to be the first time that the appellant has ever made mention of his having been abused. As is made clear from the pre-sentence report, considered below, many a report over the years has been prepared in relation to the appellant, but none appears ever to refer to issues arising from his having being sexually abused.
In interview with Mr Fugler the appellant described his uncle as having been “affectionate and generous towards him, in marked contrast to his step father who was reported to have been dismissive and aggressive”. The appellant told his mother about the sexual relationship with his uncle when he was 13 but was dismissed and told he was “causing trouble”. The appellant admitted that by that time he had a history of lying which he explained as attention seeking behaviour in that negative attention was better than none at all. The appellant told Mr Fugler that it was after he was disbelieved that he first absconded from home and began to form relationships with peers who engaged in antisocial activity and who were also from dysfunctional families.
The appellant informed Mr Fugler that he returned home at age 16 and unsuccessfully raised the subject of sexual abuse on several occasions. He reported that he felt unloved and unsupported and that his associates eventually dragged him into criminal activity. He left home permanently soon thereafter.
Mr Fugler formed the following opinion:
… Bradley Smoker has an anti-social personality disorder (DSM 5: 301.7), which developed from a conduct disorder in childhood. He has a history of impulsivity, aggressiveness, irresponsibility, and a failure to conform to social norms. Your client also has an alcohol use disorder (DSM 5: 303.90– in early remission-in a controlled environment). Under most circumstances Mr Smoker would be expected to be displaying a reduced level of offending in line with increased maturity, most individuals with antisocial personality disorders gradually reducing (sic) their antisocial behaviour by the fourth decade of life. In Mr Smoker’s case any diminution in unlawful activity has not been the result of a low level of motivation on his part, your client expressing positive commitment to establishing a stable crime free future, but rather a combination of the personality disorder and the negative affects causally related to the sexual abuse he experienced in childhood. Those have impacted on his ability to cope effectively with conflict and stress and ability to break a long established pattern of offending.
Mr Fugler brings his report to a close by identifying the sort of interventions which if provided would reduce the likelihood of the appellant reoffending. In particular he suggests an alcohol treatment program and long term counselling and psychotherapy with an experienced psychologist or psychiatrist in order that the appellant be equipped with skills in stress management which would see him cope better when experiencing episodes of self-loathing and avoid making bad decisions.
The presentence report was prepared by a community corrections officer on 7 April 2014. It was prepared with the benefit of an interview with the appellant and access to previous presentence reports and parole reports prepared in relation to the appellant. The report makes plain that the appellant’s childhood, familial, and education history were far from what may be considered ideal. It also confirms the use of alcohol and illicit drugs from an early age. Further, it demonstrates a considered effort having been undertaken in the past by the authorities to work with the appellant to deal with his abuse of alcohol and use of illicit drugs. It notes that the appellant enjoys reasonable physical health and has benefited from antidepressant medication. It records the difficulties the appellant has experienced in his relationship with his former partner and the consequent difficulties in maintaining a relationship with his son. However the observation is made that the then in place intervention order was to be subject to amendment in the near future to allow him to have contact with his former partner and his son.
Under the heading criminogenic factors the author notes:
Mr Smoker’s lack of consequential thinking, along with his apparent disregard for directions/conditions by authorities has seen him come before the Court on multiple offences. His substance abuse, both alcohol and drugs are likely to have influenced his decision making at the time of the subject offences. It is considered Mr Smoker would benefit from psychological assistance, alongside addressing his substance abuse for any likely change in his behaviour to be effected.
When asked about prosocial friends/associates, Mr Smoker was unable to identify any. He would benefit from assistance in this area.
Mr Smoker’s attitude and beliefs in relation to his intimate partner relationships and his use of domestic violence is also an area which he needs to address.
The impact of his childhood sexual abuse is not known, however it is considered this may have influenced his capacity to form trusting relationships, be that personal or professional. His use of alcohol and other drugs could also be seen as his own way of managing his own mental health, or be it a destructive one both for himself and those around him.
Records on file note some information which is inconsistent with what Mr Smoker has provided for the purpose of this report. It is therefore hard to establish with any certainty which information is accurate, although what can be established is Mr Smoker has a long standing history of problematic alcohol and drug use with this contributing to his offending behaviour.
The report then turns to consider the appellant’s response to supervision. It notes that on occasions there has been positive outcomes however the opposite has also been experienced “which has no doubt been an influence by use of alcohol, as well as his choice of associates”.
We note that in this report the appellant disclosed that whilst he was on parole in Western Australia he reoffended with the consequence that he was returned to custody and completed the entirety of his sentence. That coincides with the gap in his offending history between April 1998 and August 2005.
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.
We turn to the issue of whether the sentence is crushing in the sense that we have explained it above. The appellant is 41 years old. He will be eligible for release when he is 47. He stands to spend many years in the community upon his release. True it that his son will be around ten years old by that time, but he will have a considerable period of time in which to cultivate a relationship with his son and participate in his son’s life thereafter. In our view it cannot be said that the aggregation of the two sentences and the fresh non-parole period are crushing. Leniency has been extended to him. There is no principled basis grounded in the evidence that permits us to determine that the sentencing Judge should have further reduced what was, viewed overall, a proportionate sentence.
In our view, the sentencing discretion has not miscarried. The appeal should be dismissed.
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