R v Vaughan (No 3) - [2009] SASC 398

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v VAUGHAN (No 3)
[2009] SASC 398
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kourakis)
21 December 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
Application for permission to appeal against sentence - applicant convicted by jury verdict of offences of using motor vehicle without consent and of aggravated robbery - applicant also pleaded guilty to the offence of aggravated assault - sentencing Judge imposed single sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of seven years and six months’ imprisonment - sentence reduced to six years to bring into account time spent in custody - non-parole period of three years fixed - whether head sentence and non-parole period manifestly excessive.
Held: permission to appeal against sentence refused - no error of sentencing principle identified - sentence imposed appropriate in circumstances and well within sentencing discretion.
Criminal Law Consolidation Act 1935 (SA) s 86A and 137(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

R v VAUGHAN (No 3)
[2009] SASC 398
Court of Criminal Appeal Gray, Sulan and Kourakis JJ
Permission to Appeal:
GRAY J.

This is an application for permission to appeal against sentence.
On 19 February 2009, the applicant, Jeffrey Scott Vaughan was convicted by jury verdict of the offence of using a motor vehicle without consent contrary to section 86A of the Criminal Law Consolidation Act 1935 (SA) and of the offence of aggravated robbery contrary to section 137(1) of the Criminal Law Consolidation Act. The applicant had also pleaded guilty to the offence of aggravated assault.
The sentencing Judge imposed the one sentence in respect of the three offences pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). A head sentence of seven years and six months’ imprisonment was imposed. That sentence was reduced to six years to bring into account time spent in custody by the applicant. The sentencing Judge imposed a non-parole period of three years. The Judge directed that the head sentence and non-parole period commence on the day on which the applicant was taken into custody following the jury verdicts, namely, 19 February 2009. The applicant was also disqualified from holding or obtaining a driver’s licence for a period of five years. That disqualification was to operate from the date of his release from custody.
On 18 October 2006 the applicant with three others, Miller, O’Loughlin and Vonderwall, took control of a motor vehicle without the permission of the owner and went for a joyride. The four men had planned to use the vehicle in a robbery of a post office, but the vehicle was not used for this purpose. Instead, the vehicle of one of the four men, Vonderwall, was used. On 20 October 2006 the four men, travelling in the vehicle driven by Vonderwall, went to a post office at West Richmond. Two of the men, Miller and O’Loughlin, went inside to effect the robbery. The applicant’s role was to remain in the motor vehicle with Vonderwall to ensure that he did not drive off and abandon the two men effecting the robbery.
Miller and O’Loughlin entered the post office wearing overalls and balaclavas, one carrying a machete and the other a club-lock. The machete was held to the throat of the proprietor. Money and watches were stolen. Miller and O’Loughlin returned to the vehicle and a getaway was effected. Miller and O’Loughlin were let out of the vehicle in the city to spend some of the proceeds. The applicant exited the vehicle near his place of residence. Vonderwall then left in his vehicle. He was instructed to get rid of the disguises and weapons. Vonderwall, contrary to those instructions, reported the matter to the police and provided to them the disguises and weapons that had been used. Vonderwall was given immunity from prosecution and became a witness for the Director of Public Prosecutions in the trial.
When sentencing the applicant the Judge summarised the applicant’s criminal antecedents in the following terms:
For you, Vaughan, you are now aged 39 years. You have convictions for the unlawful use of a motor vehicle. Although you do not have any prior offence of robbery, you have a number of offences of violence, a couple for which you were sentenced to imprisonment. You have a lot of other offences, some for which you received immediate goal [sic], others suspended sentences. Again, you are not to be penalised for those earlier matters, but they remain relevant to the extent of leniency and your prospects of rehabilitation.
Having said all of that, there has not been much by way of serious offending in the years before these offences. Apart from personal deterrence, general deterrence is relevant so that others who may be minded to offend like this will be deterred. This was a soft, easy target that occasioned great fear. Sentences need to be fashioned that deter others from this type of offending.
The Judge summarised the applicant’s personal circumstances as follows:
Turning to your personal circumstances, you have been with your partner for about 11 years. There were two stepchildren and now three children of your own, the youngest having been born while you have been in custody. You have had limited employment opportunities before going into custody. However, I accept that you are motivated to work and receive counselling and the support of Baptist Care (SA) Inc. Such matters are relevant to your prospects of rehabilitation but the precise measure of those prospects is a matter about which I am guarded. You acknowledge you have issues relating to your excessive drinking and you have made genuine efforts to reduce it in the past.
Without repeating the matters in your general background, I have taken into account the submissions of [counsel for the accused]. As I previously noted, there was an extended period of time before the commission of these offences where you had little by way of serious offending. The difficulties for your family when you were previously in custody, since the verdicts and while you were serving your sentence are not sufficiently severe to warrant any reduction in that sentence.
The Judge then addressed the role of the applicant in the offences in the following terms:
Your role in the armed robbery was different from that of O’Loughlin and Miller because you remained in the car with Vonderwall. However, you knew this was a soft target, the two actual robbers wore disguises and, importantly, you knew they were armed with offensive weapons. Although your role was different, your criminal culpability was not materially different from the others.
It is to be borne in mind that the applicant was also to be sentenced for the offence of aggravated assault against Vonderwall.
The applicant complained that both the head sentence and the non-parole period were manifestly excessive.
The sentencing Judge was correct in his assessment of the criminal culpability of the applicant with respect to the offending and in particular the offence of aggravated robbery. Although the applicant had some prospects of rehabilitation, those prospects could be fairly described as limited. Given the applicant’s criminal antecedents, the sentence was lenient.
No error of sentencing principle was identified. It was not suggested that the Judge had misunderstood the matters of fact or had regard to any irrelevant material or failed to have regard to any relevant material. The sentence imposed by the Judge was an entirely appropriate sentence well within his sentencing discretion. The Judge had proper regard to the time spent in custody and to the time spent on home detention when fixing the head sentence. In the circumstances the non-parole period fixed at one half of the head sentence could be fairly described as merciful.
I would refuse permission to appeal against sentence.
SULAN J: I would refuse the application for permission to appeal. I agree with the reasons of Gray J.
KOURAKIS J: I agree that permission to appeal against sentence should be refused.