R v Weetra - [2006] SASC 275

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WEETRA
[2006] SASC 275
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)
8 September 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
Crown appeal against sentence - respondent pleaded guilty to using a motor vehicle without consent and aggravated robbery - respondent sentenced to seven years imprisonment with a non-parole period of four years, suspended upon the respondent entering into a $500 supervised bond to be of good behaviour for two years - respondent had previously received suspended sentences including one for a similar offence - held, suspension of sentence for armed robbery is justified only in exceptional circumstances - held, personal matters of mitigation did not outweigh the seriousness of the offending and the need for general deterrence - application for leave granted, appeal allowed, order for suspension revoked.
R v Lumsden [2000] SASC 49, applied.
R v Osenkowski (1982) 30 SASR 212, distinguished.

R v WEETRA
[2006] SASC 275
Court of Criminal Appeal: Duggan, Sulan and David JJ

DUGGAN J. In my view, leave to appeal against sentence should be granted, the appeal allowed and the order for suspension of the sentence revoked. I agree with the reasons for decision prepared by David J.
SULAN J. I agree with the reasons of David J.
I would grant the DPP leave to appeal. I would allow the appeal. I would impose one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 of imprisonment for seven years, with a non-parole period of four years imprisonment. I would disqualify the respondent from holding or obtaining a driver’s licence for twelve months. I would decline to suspend the sentence.
DAVID J. This is an application by the Director of Public Prosecutions (“the DPP”) for leave to appeal against the sentence of Colin Andrew James Weetra.
The respondent pleaded guilty on 20 September 2005 to the offences of using a motor vehicle without consent and aggravated robbery. On 23 May 2006, he was sentenced by a judge of the District Court to imprisonment for seven years, with a non‑parole period of four years. The judge suspended the sentence upon the respondent entering into a $500 bond to be of good behaviour for two years on condition that he be under the supervision of a Community Corrections Officer for the first 12 months. He was also disqualified from holding a driver’s licence for 12 months.
The DPP has sought leave to appeal against the sentence imposed on the basis that it was manifestly inadequate.
Facts
The respondent was charged with a co‑accused, Philip John Archer, of committing the offences of using a motor vehicle without consent and aggravated robbery. The co‑accused pleaded guilty to these offences and was sentenced by another District Court judge. The proceedings against the co‑accused are not relevant for the purposes of this appeal.
It was the prosecution case that on 9 June 2004, the respondent and the co‑accused took a car from a shopping centre at Salisbury. They then travelled to the Brooklyn Park Post Office, which they robbed of $4129. During the robbery, the respondent was in possession of an object resembling a pistol and the co‑accused was in possession of a tomahawk.
The respondent pleaded guilty on the morning of the trial and was sentenced. In his sentencing remarks, the sentencing judge noted that the maximum penalty for using a motor vehicle without consent is two years, and the maximum penalty for aggravated robbery is life imprisonment. He approached the offence of using a motor vehicle without consent as being a subsequent offence, which meant that the minimum sentence was three months and the maximum sentence was four years.
The sentencing judge stated that the respondent was entitled to only minimal credit for his guilty plea, due to its lateness. He also stated that in determining the sentence to be imposed, he had had regard to the victim impact statement and the effect on the victims.
In relation to the personal circumstances of the respondent, it was noted that he had a history of offending and he had previously received several suspended sentences. Most relevantly, the respondent had been sentenced in December 2001 for assault with intent to rob, larceny from the person and robbery, relating to incidences of bag snatching and attempted bag snatching. The respondent was given a three year sentence with a non‑parole period of 14 months, which was suspended upon the respondent entering into a $1000 bond to be of good behaviour for two years. The sentencing judge observed that although the offence in the present case did not breach that bond, it was of the same type, albeit more serious due to the threats made and the means used.
The sentencing judge considered that the offence in the present case was “very serious” and that general deterrence was a “paramount factor” in determining the sentence. He also considered that personal deterrence was an important factor, as the respondent’s history of offending demonstrated a need for deterrence.
The sentencing judge also referred to a significant number of character references that had been tendered in support of the respondent. He accepted that the respondent was sorry for his actions, had been a hardworking member of the community, and was committed to his family and to helping Aboriginal people, particularly through his work for the Aboriginal Sobriety Group. He said that although the offending was very serious, it followed a “catastrophic” series of personal events that would not be repeated. Finally, he noted that the respondent had not offended between the time of the offence and the time of sentence, and considered that the respondent had good prospects of rehabilitation.
The sentencing judge adopted what he described as the “extraordinary course” of suspending the sentence imposed on the respondent. The sentence imposed was imprisonment for seven years, with a non‑parole period of four years. The respondent entered into a $500 bond to be of good behaviour for two years. A condition of the bond was that the respondent be under the supervision of a Community Corrections Officer for the first 12 months. He was disqualified from holding a driver’s licence for 12 months.
Grounds of Appeal
The DPP sought leave to appeal on several grounds. Firstly, the DPP contended that leave should be granted to enable this Court to establish the principles governing the exercise of the discretion to suspend sentences for armed robbery, and to correct the sentence in the present case, which the DPP submitted was “manifestly inadequate”.
Secondly, the DPP submitted that the very inadequacy of the sentence imposed on the respondent demonstrated that the sentencing judge had made an error of principle.
Thirdly, the DPP contended that the sentencing judge had failed to give adequate weight to the circumstances of the offence, and in particular, that the offences in question were committed soon after the respondent was sentenced to a suspended term of imprisonment for a similar offence.
Finally, the DPP contended that if this Court were to uphold the sentence imposed on the respondent, the standards of punishment necessary to deter those inclined to committing armed robberies would be eroded.
Arguments on Appeal
The Solicitor‑General submitted that the sentencing judge was led into error because of the contents of a psychological report of Mr Richard Balfour which was tendered by the respondent. Within the report Mr Balfour set out information which he had received when interviewing the respondent, which was clearly false. The Solicitor-General argued, therefore, that Mr Balfour’s opinion to the Court that the respondent was motivated to rehabilitate himself was based on a false premise. He submitted that within Mr Balfour’s report it is clear that the respondent had told Mr Balfour that he had no prior history of offending as an adult (Appeal Book, p 46), when in fact, he has had an extensive adult criminal history, which included a conviction for assault with attempt to rob. The Solicitor‑General argued that this mistake casts doubt upon the opinion of Mr Balfour upon which the sentencing judge relied, and also casts doubt upon the submission that the respondent is truly contrite. There was no explanation as to why that error was not identified during sentencing submissions. The Solicitor‑General then elaborated upon other differences between information that the respondent gave to Mr Balfour and what was contained in his report and the real position.
However, in my view, errors that found their way into Mr Balfour’s report would not justify the grant of leave to appeal. The sentencing judge was clearly aware of the criminal history of the appellant, having been provided with an antecedent report and he made mention of that history in his sentencing reasons. He was also provided with a great deal of material in addition to Mr Balfour’s report concerning the appellant’s contrition and his future prospects.
The Solicitor‑General presented a more fundamental argument that in the light of the seriousness of the offending and the criminal history of the accused, to suspend the sentence was manifestly incorrect. He argued that even allowing for what was described as the catastrophic events leading up to this offence being committed, namely the break‑up with his partner and the death of his parents, there was no legitimate reason for suspension, bearing in mind the seriousness of the offence and the criminal history of the respondent.
Mr Richards, counsel for the respondent, argued that the sentencing judge was well within his discretion to suspend the term of imprisonment and that this was an appropriate case in which to take the course of suspending for the second time an offence involving robbery from a person. He is supported in principle by what Chief Justice King said in R v Osenkowski (1982) 30 SASR 212 at 212-213:
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
The discretion to suspend a sentence can only be exercised if good reason exists to do so. This Court has made it clear that a suspension of sentence of imprisonment for armed robbery is justified only in exceptional circumstances: As Martin J said in R v Lumsden [2000] SASC 49 at [26]:
In considering whether it is appropriate to suspend the sentence, the Court must balance a number of interests to which I have referred against the possibility that suspending the sentence would send a wrong signal to persons who are tempted to commit serious crimes and, in particular, crimes of armed robbery (cf R v Taddeo (1993) 67 A Crim R 338 at 340). Suspension of a sentence of imprisonment imposed for armed robbery is justified only in exceptional circumstances. Ordinarily, factors such as a guilty plea, contrition, youth, addiction to drugs and prospects of rehabilitation, even in combination, would not amount to exceptional circumstances justifying suspension of the sentence. Those factors are, unfortunately, commonly present in matters of armed robbery that come before the criminal courts.
No exceptional circumstances were demonstrated in this case. Undoubtedly the respondent had experienced a number of negative events in his life, namely the break‑up of his relationship with his partner and the loss of his relatives. But these do not amount to exceptional circumstances which justify the suspension of a sentence for serious repeated offending, particularly as he had received merciful treatment in the past. The factors which mitigate against suspension of the respondent’s sentence are firstly, the very serious nature of the offence which involved two people, one armed with a tomahawk and one armed with a replica gun, and secondly, the manner in which the robbery was carried out, whereby customers at the Brooklyn Park Post Office were threatened and terrified.
For offending of this nature general and personal deterrence must be of paramount consideration. In my view, the balancing process could not be exercised in favour of suspension because of matters personal to the respondent. Although the sentencing judge had before him a substantial amount of material concerning the respondent’s involvement with the Aboriginal Sobriety Group, and although the sentencing judge found he was genuinely remorseful, these matters could not outweigh the seriousness of the offending and the need for general deterrence. Further, the respondent came before the Court as a person who has had the benefit as an adult of two previous suspended sentences, one of which was for a similar offence.
I would grant leave, allow the appeal and revoke the order for suspension.