R v Wells No. Sccrm-99-57 Judgment No. S196

[1999] SASC 196

R v WELLS

[1999] SASC 196

Court of Criminal Appeal:  Olsson, Duggan and Mullighan JJ (extempore)

1 OLSSON J:     We have reached a decision in this matter and I will invite Justice Duggan to indicate his conclusion first. 
2 DUGGAN J:    The appellant has appealed against his sentence in relation to various offences committed on 10 January 1998.  The sole ground of appeal is that the global sentence which was imposed for these offences was manifestly excessive.
3 The appellant was presented on an information which alleged that he committed two offences of armed robbery and two offences of illegal use of a motor vehicle.  It was further alleged that he committed the offence of burglary and threatening a person with a firearm.  It was alleged that each of these offences was committed as part of a joint enterprise with a number of other offenders.
4 At trial the appellant was convicted of the two counts of armed robbery and the two counts of illegal use of a motor vehicle.  He was acquitted on the charges of burglary and threatening another with a firearm.
5 It is necessary to refer to some of the details of the offences.  The victims in the first armed robbery were a family by the name of Burman who live at Brahma Lodge.  At approximately 12.20 am. on 10 January 1998, three men armed with knives and wearing balaclavas gained entry to their house.  Mr and Mrs Burman and their 20 year old son were at home.  The men threatened the family and demanded to know the whereabouts of a rifle belonging to the family.  Mrs Burman went to her car and handed over the rifle.  After the men had left Mr Burman discovered that the telephone wires to the premises had been cut.  The appellant was one of the men involved.
6 The second armed robbery was committed by the appellant and three other men at McDonald's restaurant at Pooraka later on the same evening.  The men travelled to the premises in a car which was illegally used by them.  One was armed with a loaded rifle, another with a replica pistol and the third with a knife.  Money was demanded from a young female attendant.  She was made to take one of the men to a safe which was located in a room at the rear of the premises.  There the manager of the premises was made to open the safe and approximately $6,400 was taken by the men.  The learned sentencing judge noted that the young assistant was fearful for her life and the incident has had a profound effect on her and her family.  She has required counselling.  The manager has also been affected by the incident.  The men escaped in one vehicle and then changed over to another, which they illegally used.  They were eventually apprehended by the police in the course of a chase.
7 I have said that the learned sentencing judge imposed a global penalty in respect of the four offences.  He sentenced the appellant to imprisonment for 13 years and set a non-parole period of imprisonment for 8 years and six months.
8 The appellant was 22 years of age at the time of sentencing.  He has a number of previous convictions, including convictions for assault occasioning actual bodily harm, property damage, arson, breaking and entering and illegal use of a motor vehicle.  Ms Davey, for the appellant explained the nature of some of these offences, and commented that they were not of a particularly serious nature.  However, their number and the fact that the appellant does not appear to have learnt from his previous appearances before the courts must be taken into account when considering whether his antecedents invite leniency.
9 The psychological report prepared by Mr Fugler indicates that the appellant has had a disrupted childhood, although there were no signs of any psychiatric disorder or psychological dysfunction.  Nevertheless, the history of the appellant in this respect is undoubtedly of some relevance, although it must be considered against the background of two particularly serious offences of armed robbery.
10 I return then to the penalty imposed.  The learned sentencing judge said he took into account the principle of totality.  He also said that he took into account the fact that the appellant pleaded guilty to the McDonald's robbery in the course of the trial, and he reduced the penalty which he would otherwise have imposed by one year because of the plea of guilty.
11 I am not convinced that this circumstance justified any reduction in the penalty. The plea came at a late stage in the case and after some witnesses to the McDonald's robbery had given evidence. I doubt that there was any serving of the public interest or any of the other factors attendant upon the plea of guilty which warranted the exercise of leniency. The circumstances in which a reduction in sentence will be appropriate by reason of a plea of guilty are discussed in The Queen v Shannon (1979) 21 SASR 442.
12 There is a further consideration which is relevant in this respect and that is that the appellant was not prepared to explain his role in relation to the offence to which he pleaded guilty and there has been no recovery of the money taken.
13 It was argued by Ms Davey on behalf of the appellant that insufficient regard was paid by the sentencing judge to the fact that the offences formed part of what was said to be a continuous criminal enterprise. There will be cases in which the fact that a series of offences can be considered as one episode of criminal conduct may be taken into account for sentencing purposes. In these cases it may be appropriate to direct that sentences be served concurrently or to acknowledge in some other way the fact that it would be artificial and unduly harsh to arrive at a sentence by the simple addition of the penalties which would be appropriate for the offences if considered individually (See MacKenzie v Betts (1980) 23 SASR 307, Attorney-General v Tichy (1982) 30 SASR 84 and The Queen v Dorning (1981) 27 SASR 481).
14 However, in the present case two serious offences of armed robbery were committed on separate victims.   In my view, these were two separate incursions into criminal conduct.  I think it would be inappropriate to reduce the overall penalty simply by reason of the fact that the offences were committed within a short time of one another.  It may be that the illegal use offences could be considered as incidental to the armed robberies, but that is the only circumstance in the present case which would justify any element of concurrence in penalty or for the matter to be taken into account so as to reduce the period of imprisonment passed by way of a global penalty.  Nor do I consider that the principle of totality should lead to any different penalty in the present case.  The sentencing judge considered this aspect and I would not interfere with the exercise of his discretion.
15 I should add that it was conceded by Ms Davey that the circumstances did not justify complete concurrence but it was her submission that the linked nature of the offences, as she called it, should have led to a reduced term of imprisonment.  She stressed that the first offence was committed in order to obtain a rifle, in order for it to be used in relation to the second armed robbery.  However, I repeat my view that the serious circumstances of the first offence render inappropriate any reduction on this account.
16 The appellant could not lay claim to leniency by reason of the lack of any criminal record.  His list of previous offences before the courts preclude him from that and, at the same time, indicate a history of disregard for the law.  I have said that the offences of armed robbery were serious examples of their type.  In the first offence, a family was terrorised in their home by armed and masked men.  In the second offence, employees of the restaurant were subjected to similar treatment which has had a continuing adverse effect on them.  It must also be taken into account that the criminal conduct included two offences of illegal use of a motor vehicle.
17 These considerations lead me to the conclusion that it would be inappropriate to interfere with the head sentence which was imposed on the appellant.  However, there is one aspect of the matter which I think does call for interference by this court.  It must be acknowledged that the appellant is a young man and that, although his record indicates a disregard for the law, it is not, in itself, particularly serious.  It is also relevant to take the appellant’s disadvantaged upbringing into account.  This was a long period of imprisonment for what might be regarded as the appellant's first major episode of offending and, in these circumstances, I think that the aspect of rehabilitation, when considered against the background of a lengthy sentence, was a matter which required particular attention.  These considerations have led me to the conclusion that the appeal should be allowed for the limited purpose of reducing the non-parole period from  eight and a half years to seven years.  However I would confirm the head sentence.
 18 MULLIGHAN J:    The circumstances of these crimes and the issues raised on this appeal have been mentioned by Duggan J.  These crimes are undoubtedly very grave and have had serious consequences for the victims.  I agree that it is a matter of significance that the appellant has chosen not to disclose his precise role in these crimes, which is a matter to be considered when reaching a sentence.
19 However, I take a different view about the outcome of the appeal.  In my view, the sentence is manifestly excessive.  All of these offences were committed during a course of conduct on one night over a period of about six hours.  There is clearly a link between each of them.  The first armed robbery was committed for the purpose of the second armed robbery and the two offences of illegal use of motor vehicles were also committed for the purpose of the second armed robbery.  And so it is appropriate to regard the totality of the offending in the context of a course of criminal conduct over a relatively short period of time.
20 The appellant is a young man.  He was aged 21 years at the time of the offences.  He has a significant criminal record, but not one involving particularly serious crimes, and he has not, before this sentence, been sentenced to imprisonment.  So he comes to prison, in view of this sentence, as a young man and for a very long period of time, and, in my view, that is a matter that must be considered in the context of his personal circumstances and his prospects of rehabilitation.
21 It has not been suggested that the appropriate sentences for each of the offences should be made concurrent, but there should be appropriate overlapping and I do not think that that has been achieved.  I do not see any error in the exercise of the sentencing discretion by the reduction of the sentence on account of the late plea of guilty.  A plea of guilty should be acknowledged, whenever it occurs, in the sentencing process, if appropriate, and I think it was appropriate in the present circumstances as the trial still had some distance to run.
22 In my view, the learned Judge had insufficient regard to the age and personal circumstances of the appellant, his prospects of rehabilitation and the totality principle, even though it must be acknowledged that deterrence is a predominant aspect of the sentencing process for these offences.  I would allow the appeal and impose one sentence of 10 years with a non-parole period of six years.
 23 OLSSON J: In accordance with the view of the majority members of the court, the order of the court will be that the appeal be allowed for the purpose of reducing the non-parole period in this matter to a period of seven years to run from the same date as that fixed by the learned sentencing judge.  The sentence will otherwise be affirmed.