R v Thompson - [2021] SASCA 40

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v THOMPSON
[2021] SASCA 40
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)
21 May 2021

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
Application by the South Australian Director of Public Prosecutions for permission to appeal against sentence.
The respondent pleaded guilty to two counts of aggravated robbery, contrary to s 137(1) of the Criminal Law Consolidation Act (SA), after robbing an On the Run service station and an IGA. The circumstances of aggravation were that the respondent threatened to use an offensive weapon when committing the offences.
The respondent had no criminal history. His personal circumstances invited sympathy. The sentencing judge imposed a single sentence for the two offences. She identified a starting point of four years’ imprisonment. She reduced that by 30 per cent on account of the respondent’s guilty pleas to two years, nine months and 19 days. She further reduced that for time spent in custody and on home detention bail. This resulted in a sentence of two years, eight months and two days. The judge fixed a non-parole period of 14 months.
The primary issue on appeal was whether the head sentence and non-parole period imposed are manifestly inadequate.
Held (by the Court), granting permission to appeal and allowing the appeal:
1. Having regard to the respondent’s personal circumstances and the fact that the robberies could be described as being at the lower end of seriousness, a combined total starting point of four years is still manifestly inadequate.
2. The sentence is set aside.
3. A starting point of five years' imprisonment is fixed in respect of each offence. A total combined head sentence of four years, one month and 13 days is imposed, after substantial concurrency, guilty plea discounts and reductions for time spent in custody and on home detention bail. The sentence is to operate from 14 July 2020. A non-parole period of two years and two months is imposed.
Criminal Law Consolidation Act 1935 (SA) s 137(1), referred to.
R v Place (2002) 81 SASR 395, applied.
R v Smoker (2016) 126 SASR 201; R v Kloss [2020] SASCFC 88; House v The King (1936) 55 CLR 499; R v Buttigieg (2020) 352 FLR 170; R v Rombola [2020] SASCFC 76; Everett v The Queen (1994) 181 CLR 295; R v Maroroa [2020] SASCFC 68, considered.

R v THOMPSON
[2021] SASCA 40

Court of Appeal – Criminal: Kelly P, Doyle and Bleby JJA

THE COURT: This is an application by the Director of Public Prosecutions for permission to appeal against sentence.
The primary issue arising is whether a head sentence and non-parole period imposed for two counts of aggravated robbery, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), following the respondent’s plea of guilty, were manifestly inadequate. The circumstances of aggravation were that the respondent threatened to use an offensive weapon when committing the offences.
There is also an issue of whether the Court should grant the Director permission to appeal in any event.
The maximum penalty for the offence of aggravated robbery is life imprisonment. The sentencing judge imposed a single sentence for the two offences. She identified a starting point of four years’ imprisonment. She reduced that by 30 per cent on account of the respondent’s guilty pleas to two years, nine months and 19 days. She further reduced that by 19 days on account of time spent in custody and gave credit of a further 10 days for time spent on home detention bail in respect of charges that were later withdrawn. This resulted in a sentence of two years, eight months and two days, which commenced on 14 July 2020. The judge fixed a non-parole period of 14 months.
The offending
On 4 February 2020 at 5:55 am, the respondent entered an On the Run (‘OTR’) service station at Blair Athol. After selecting some groceries and being asked for payment by the attendant, he said, ‘Give me the money, open the till’. He unzipped his jacket and revealed what appeared to be a hunting knife. The attendant handed him $50. The respondent left with the cash and groceries and ran north on Main North Road. Police were unable to locate him.
That night, at 8:55 pm, the respondent entered an IGA in Clearview. He once again selected some groceries and approached the checkout. The attendant noticed the respondent ordering an Uber vehicle through his mobile phone, before advising him of the total price. The respondent said something like ‘I’m sorry to do this to you’. He lifted up his jumper and revealed what appeared to be a large hunting knife tucked into the waist of his pants. He demanded the money in the till. The attendant handed over about $500, and the respondent left with the cash and groceries.
The respondent caught an Uber to a house where he was staying. Police attended the IGA at 9:00 pm, and as part of their investigation accessed the ‘Uber Law Enforcement Portal’. This identified the respondent as the only Uber customer in the vicinity within the previous hour, and his destination address. GPS data from Uber showed that the user had been in the IGA store at the time of the robbery. Police attended at the address where they arrested the respondent.
The respondent’s personal circumstances
The personal circumstances of the respondent that were before the Court extended to information contained in a report from a psychologist, Dr Lim.
The respondent was 25 years old at the time of sentencing. His father has never been involved in his life, and he described his mother as a neglectful parent. His mother held regular drunken parties at their family home and on some of these occasions he was sexually abused by some of his mother’s friends. His mother was involved in a series of short-term, abusive relationships. His current stepfather had been physically abusive towards him on multiple occasions. He does not have a good relationship with him.
The respondent attended school in Victoria until Year 10. He then enrolled at TAFE as his Year 11 equivalent but eventually withdrew from that course and moved to South Australia in 2015 to pursue a relationship. His mother, stepfather and half-sister moved to South Australia a few years after that in order to be closer to him.
The respondent has had a sporadic employment history. After separating from his partner in 2019 he repeatedly failed to show up for work and his employment was terminated. He was unemployed from that time until the offending.
The judge described the respondent’s childhood as ‘extremely traumatic’. The respondent has suffered from depression and anxiety since his mid-teenage years. He had a poor ability to manage conflicts in his relationship with his former partner and experienced volatile moods and behaviours. His former partner encouraged him to seek counselling. Following a psychiatric review ordered by his GP, he was diagnosed with a Borderline Personality Disorder.
The relationship ended in 2019. The respondent spiralled into a state of deep depression. He experienced active suicidal ideation on a daily basis. He disengaged from his mental health treatment and turned to methamphetamines, which exacerbated his depression and anxiety. He was evicted from his family home in late 2019 or early 2020 due to irrational and aggressive behaviours, and began sleeping on the street, staying in temporary homeless shelters and alternating between the homes of two men he had met on the drug scene.
He offered to compensate the first man he was staying with by providing him with drugs. The other man did not ask for anything in return at first and often paid for food and drugs for the respondent. However, he began to make sexual advances towards the respondent. When the respondent rejected those advances, the man demanded repayment for the money he had spent providing the respondent with food and drugs. When interviewed, the respondent explained that he had committed the robberies because he felt he needed to earn his stay at the first man’s house, and needed to repay the debt owed to the second man.
Dr Lim considered that the respondent met the criteria for borderline personality disorder, and that his irrational and reckless behaviours were a direct result of his abuse of a range of illicit drugs. She summarised her opinion as follows:
I believe that in Mr Thompson’s case, his feelings of insecurity and his constant need to “feel safe” are underpinned by the core features of his borderline personality disorder, while the range of irrational and reckless behaviours he had displayed between late 2019 until his current remand into custody in mid-2020 were a direct result of his abuse of a range of illicit drugs during that period, which had initially begun as an emotional coping strategy until he developed a polysubstance dependency. Therefore, I consider that there was a direct nexus between his dysfunctional personality structure, his substance abuse, and his commission of the Aggravated Robberies in particular. I do not believe that Mr Thompson was experiencing a drug induced psychotic episode at the time, given the timeframe that had lapsed between the two robberies. He also appeared to have displayed some level of cognitive reasoning and planning with regards to his offending conduct. However, I believe that Mr Thompson’s persistent and chronically high level of drug abuse in the wider community had significantly contributed to his impaired judgment and his reckless behaviours on this occasion.
Against this background, and somewhat remarkably in the circumstances, prior to his arrest the respondent had no criminal history whatsoever.
The judge’s sentencing remarks
The judge noted that the respondent had provided a letter of apology to both operators and that he had no criminal history. She had considerable and appropriate express regard to his personal history, the essence of which is set out above.
The judge accepted that the offending could be characterised as being ‘towards the lower end of the scale of seriousness.’ She also accepted that the respondent was somewhat apologetic to the IGA operator at the time of the robbery, that he had merely shown the operators the knife and had not otherwise brandished it around. However, she noted that ‘merely showing the operators the hunting knife was menacing and threatening, and would understandably have placed them in considerable fear’. She indicated that she took into account the respondent’s personal circumstances, the particular difficulties he was experiencing at the time and his lack of offending history.
The applicability of the sentencing standard
In the course of sentencing submissions, the prosecution had submitted that this matter was of the type contemplated by the Full Court, which had sat as a bench of five, in R v Place (‘Place’).[1] In that case, the Court said:[2]
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.
[1] R v Place (2002) 81 SASR 395.
[2] R v Place (2002) 81 SASR 395 at [100] (Doyle CJ, Prior, Lander and Martin JJ).
The Court left the description of offences to which this range applied deliberately broad. As it went on to say:[3]
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.
[3] R v Place (2002) 81 SASR 395 at [101] (Doyle CJ, Prior, Lander and Martin JJ).
That sentencing standard, broadly expressed, has been applied and affirmed on a number of occasions.[4] Nevertheless, as is the case with any articulated range, circumstances will arise where a sentence of less than six years would be justified, or a sentence greater than eight years.[5] In R v Kloss, this Court said:[6]
What is clear from the authorities regarding sentencing standards is that they may guide the sentencing court and the appellate court as to the appropriate range of sentences for an offence carried out in typical circumstances by an offender whose personal circumstances are not especially mitigating. However, sentencing standards do not dictate an outer range beyond which manifest inadequacy is established.
[4]     See R v Smoker (2016) 126 SASR 201 at [12] (Nicholson J), and at [68] (Lovell and Hinton JJ).
[5]     R v Smoker (2016) 126 SASR 201 at [12] (Nicholson J).
[6]     R v Kloss [2020] SASCFC 88 at [35] (Hughes J, Peek and Nicholson JJ agreeing).
Counsel for the respondent, Mr Charman, accepted that the objective elements of the respondent’s offending corresponded with the broad description of the type of offending contemplated in Place. However, he submitted that the respondent’s personal history and circumstances mandated that this was not only an appropriate case in which to depart from the range, but that it could not be said that the sentence was manifestly inadequate. This was not least on account of the respondent having no criminal history, against the background of his highly traumatic and dysfunctional upbringing.
Mr Charman’s submissions, focussed as they were on the personal circumstances of this respondent, carried considerable force. As he submitted, it is necessary to focus on both the objective offending and the respondent’s personal circumstances. There are mitigating considerations subjective to the respondent that speak strongly in favour of this being a case where it is appropriate to depart from the range. However, that is not the primary question on the appeal. The primary question is whether the sentence is manifestly inadequate.
The two aggravated robberies took place some 15 hours apart. In the interim, the respondent spent the day at the house where he was staying at the time, smoking methamphetamine and listening to music. At one point, he passed out after taking Valium. He woke up and told his housemate he was going to get something to eat, which was when he then committed the second robbery. He had had time to reflect, yet still committed the second offence.
In fixing the starting point of four years, the judge did not articulate any division between the two offences. It may have been that she contemplated two sentences of four years to be served wholly concurrently; it may have been that she contemplated lesser sentences with only partial concurrency. At the other extreme, this might have represented two sentences of two years, to be served cumulatively.
The argument in favour of a sentence that fell below the range articulated in Place, on account of the respondent’s personal circumstances, is strong. However, there was nothing about the objective offending itself that rendered it remarkable when considered against the broad description given by the Full Court. It is one thing to say that there are strong arguments in favour of a particularly lenient sentence. It is quite another to say that in all of the circumstances, the sentence was merely merciful.
While interpreting the sentence is made more difficult by not knowing how the judge arrived at the figure of four years for what were to some degree at least, separate instances of conduct, the ultimate question is whether the figure reveals outcome error as described in House v The King.[7]
[7] House v The King (1936) 55 CLR 499.
The offending comprised two amateurish but otherwise fairly typical armed robberies of small retail targets, some 15 hours apart. The considerations that this Court emphasised in Place when articulating the range are all relevant to this matter. Even having regard to the respondent’s personal circumstances and the fact that the robberies could be described as being at the lower end of seriousness of offences of this kind, a combined total starting point of four years is manifestly inadequate.
Permission to appeal
This Court has had cause on a number of occasions to affirm the principles governing when the prosecution will be given permission to appeal against sentence.[8] The High Court articulated those principles in Everett v The Queen.[9] On a complaint of manifest inadequacy, the Court may grant permission to appeal to rectify the sentence as a matter of principle. However, the Crown must show sufficiently strong reasons of public policy for intervening in the face of the strong public interest in not twice-vexing the respondent.[10]
[8] See, e.g., R v Buttigieg (2020) 352 FLR 170 at [39] (Lovell J, Kourakis CJ and Nicholson J agreeing), R v Rombola [2020] SASCFC 76 at [28]-[35] (Bleby J, Blue and Stanley JJ agreeing).
[9] Everett v The Queen (1994) 181 CLR 295 at 299-300 (Brennan, Deane, Dawson and Gaudron JJ).
[10] R v Maroroa [2020] SASCFC 68 at [97] (Nicholson J), R v Rombola [2020] SASCFC 76 at [33] (Bleby J, Blue and Stanley JJ agreeing).
In all of the circumstances described above, the sentence was so low as to shock the public conscience. We do not consider that public confidence can be maintained only by expressing disapproval of the sentence and reiterating the applicable principles. Permission should be granted, the appeal allowed, and the respondent resentenced.
Resentencing
While the judge correctly described these robberies as being ‘towards the lower end of the scale of seriousness’, armed robberies are, by definition, serious. When they take place in service stations, small retail outlets or other ‘soft’ targets, they are, obviously enough, not just an offence against a business. It is entirely predictable that they will traumatise what is usually a sole worker in the shop, often causing them to be unable to continue to work in that place at all or without significant supports. The Victim Impact Statement of Mr Rahman indicates that he was indeed traumatised. He also suffered financial loss on account of his inability to work at the OTR for some time.
Nevertheless, the personal circumstances of the respondent as set out above are such as to justify, on resentencing, a merciful approach. There is reason to view this offending, in all of the circumstances, as warranting a sentence that falls to some degree below the range set out in Place.
In respect of each offence, we fix a starting point of five years’ imprisonment. We order that those terms be served with a substantial degree of concurrency, namely four fifths, reflecting the course of conduct that comprised the offences, albeit that they were separated by some 15 hours.

That results in a combined starting point of six years. We discount that by 30 per cent for the pleas of guilty, resulting in a head sentence of four years, two months and 12 days. We further reduce that by 19 days on account of time spent in custody and give credit of a further 10 days for time spent on home detention bail in respect of the charges that were later withdrawn. That results in a head sentence of four years, one month and 13 days. The sentence is backdated to commence on 14 July 2020.
For the reasons expressed above, this matter warrants setting a merciful non‑parole period. We fix a non-parole period of two years and two months.