R v Williams - [2018] SASCFC 14

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILLIAMS
[2018] SASCFC 14
Judgment of The Court of Criminal Appeal
(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Hinton)
1 March 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
Application for an extension of time in which to apply for permission to appeal against sentence and for permission to appeal against sentence, permission having been refused by a single Judge.
On 3 March 2016, after pleading guilty to the offences of aggravated robbery, robbery, and breach of bail, the applicant was sentenced for those offences to a total period of imprisonment of six years and four months. A non-parole period of 12 months was fixed. The sentences, including the non-parole period, were ordered to commence on 20 May 2015.
On appeal, the appellant submitted that the sentence imposed was manifestly excessive and, in any event, should have been suspended because the sentence did not properly reflect his culpability. The appellant submitted that his sentence was manifestly excessive having regard to the fact that he was a person of diminished responsibility, his age, that he was self-medicating in response to being abused as a child, that he had been diagnosed as suffering from post-traumatic stress disorder, that he had a relatively minor offending history, that he had pleaded guilty to all counts at an early stage, and that he had been cooperative with the police in relation to the investigation and prosecution of his own abuser.
Held by Hinton J (Blue and Stanley JJ agreeing):
1. Extension of time in which to apply for permission to appeal granted.
2. Permission to appeal granted.
3. Appeal dismissed.
Criminal Law (Sentencing) Act 1988, referred to.
The Queen v McGaffin (2010) 206 A Crim R 188 ; Director of Public Prosecutions v Lawrence (2004) 10 VR 125; R v Pham (1991) 55 A Crim R 128; The Queen v Sewell and Walsh (1981) 29 SASR 12; Weininger v The Queen (2003) 212 CLR 629; R v Hronopolous [2017] SASCFC 143; Power v The Queen (1974) 131 CLR 623; Lowe v The Queen (1984) 154 CLR 606 ; The Queen v Robinson (1990) 169 CLR 525; Bugmy v The Queen (1990) 169 CLR 525, applied.
Hasan v R (2010) 31 VR 28, not followed.

R v WILLIAMS
[2018] SASCFC 14
Court of Criminal Appeal: Blue, Stanley and Hinton JJ
BLUE J:

I agree with Hinton J.
STANLEY J:
I agree with the reasons of Hinton J and the orders he proposes.
HINTON J:
Introduction
This is an application to the Full Court for an extension of time in which to apply for permission to appeal against sentence and for permission to appeal against sentence, permission having been refused by a single Judge.
On 3 March 2016, after pleading guilty to the offences of aggravated robbery, robbery, and breach of bail, the applicant was sentenced for those offences to a total period of imprisonment of six years and four months. A non-parole period of 12 months was fixed. The sentence, including the non-parole period, was ordered to commence on 20 May 2015.
The applicant contends that the sentence was manifestly excessive and, in any event, should have been suspended.
I would grant the applicant an extension of time in which to appeal and permission to appeal, but dismiss the appeal. My reasons follow.
The circumstances of the applicant’s offending and the sentencing remarks
The sentencing Judge summarised the circumstances of the applicant’s offending as follows:
Jarred Williams, on 16 January 2015 at about 5.15 a.m. you robbed the On-the-Run Service Station at Hallett Cove. You were holding a multi-tool and demanded a carton of cigarettes and $200 cash. A passer-by located you and brought you back to the service station and told you to wait there until police arrived. The contents of your pockets were emptied which included your wallet, phone, a $20 note and a multi-tool containing a knifeblade; a crossbow bolt and a carton of cigarettes was also recovered. The $200 was not recovered.
Consequently you were charged with the offence of aggravated robbery and you pled guilty on 7 December 2015. You were granted bail and subject to home detention on 5 May 2015 for this offence.
Around two weeks after having bail granted on 18 May 2015 at about 1.32 pm you removed your home detention electronic monitoring device without permission of your community corrections officer, thereby committing the offence of failing to comply with your bail agreement. You pled guilty to that offence on 6 November 2015.
The following day, on 19 May 2015 at about 7.50 p.m., you attended the Caltex Service Station on Hutt Street in Adelaide. You told the attendant that you had a gun in your pocket and demanded a packet of cigarettes and approximately $500 in cash. No actual gun was observed. As a result you were charged with the offence of robbery. You pled guilty to that offence on 7 December 2015.
After referring to the applicant’s personal circumstances and antecedents, and to the content of a report prepared by Dr L Lim, a forensic psychologist, the Judge turned to sentence. His Honour had regard to the applicable maximum penalties and maximum discounts available on account of the applicant’s pleas of guilty. He then said:
Your offending is serious and the law requires this court to reflect in any sentence the importance of protecting those in the vulnerable positions of your victims, and the importance of deterring those who are minded to rob them.
Balanced against that, your offending was somewhat amateurish and committed whilst severely affected by drugs you had ingested. Normally that’s no excuse. However, your drug ingestion occurred in the context of a very traumatised young man attempting to self-medicate against what would have been the horror of your childhood abuse.
For the aggravated robbery from a starting point of five years imprisonment, that will be reduced by the agreed 20% on account of your plea to that offence, to four years imprisonment. That will be reduced by 31 days to account for the initial period you had spent in custody for that offence to three years 11 months.
For the second robbery which was not aggravated and did not involve the use of a weapon and involved no actual danger to anyone, from a starting point of about three years, that will be reduced by 20% to two years and five months.
You will be convicted without further penalty for your breach of bail. However, in all the circumstances you will not be given credit for the short period of time you spent on home detention bail because you abused that very bail by cutting off your home detention bail bracelet.
As the second robbery was committed while on bail for the first, these terms should be wholly cumulative, giving a total head sentence of six years and four months. That will be backdated to the time you were remanded in custody the second time which was 20 May 2015. ...
As mentioned, a non-parole period of 12 months, also backdated to 20 May 2015, was fixed. The Judge said that the repeated nature of the applicant’s offending and the need for general deterrence prevented him from finding good reason to suspend the sentences imposed.
It will be immediately observed that the non-parole period imposed was barely 16% of the head sentence. The Judge explained:
… in all the circumstances, in particular the primary role your childhood abuse had in your drug addiction and consequent offending and the need in both your and the community’s interests that you be given the strongest support to rehabilitate yourself, the unusual facts of this case justify a particularly merciful non-parole period. …
Submissions
The applicant was unrepresented. As mentioned, he contends that the total period of imprisonment imposed is manifestly excessive. Further, he submits that any sentence of imprisonment should have been suspended.
In support of his contention that the sentence was manifestly excessive and should have been suspended, the applicant contended that the sentence did not properly reflect his culpability. In his words, he should have been considered a person of diminished responsibility due to his abuse of alcohol and drugs. Related to this submission he referred to his age, that he was self-medicating in response to being abused as a child, to Dr Lim’s diagnosis of him as suffering from post-traumatic stress disorder, that he had a relatively minor offending history, that he had pleaded guilty to all counts at an early stage, and that he had been cooperative with the police in relation to the investigation and prosecution of his own abuser.
The respondent submitted that the sentence was merciful. Consistent with guidance from this Court, the aggravated robbery alone could have attracted a head sentence of six years imprisonment or greater.[1] Judgments from this Court are replete with references to the need for sentences imposed for armed robbery to protect vulnerable businesses such as those robbed by the applicant. Counsel for the respondent acknowledged the applicant’s explanation for his offending and his mental state, but submitted that the seriousness of the offending and the fact that the second robbery was committed whilst the applicant was on bail quite properly resulted in the sentencing Judge declining to suspend the sentence imposed.
[1] See R v Smoker (2016) 126 SASR 201 and the authorities referred to therein.
Counsel submitted that the sentencing Judge took into account the applicant’s explanation, his age, and the contents of Dr Lim’s report and fashioned a merciful sentence designed to provide the applicant with assistance in dealing with the issues that had led him to offend. As much was plain from the lower than normal non-parole period.
The applicant’s personal circumstances
Before considering the arguments advanced, it is necessary to refer to the applicant’s personal circumstances and the context in which his offending occurred.
The applicant was born in Adelaide in November 1996. At the time of committing the aggravated robbery he was just on two months past his eighteenth birthday. He was 18 ½ when he committed the offences of robbery and breach bail.
The applicant’s parents separated when he was seven years old. As at that time he had one brother, two years his senior. He and his brother continued to live with their mother.
Since his parents’ separation the applicant has been estranged from his father, though he reports that he is aware that his father remains abreast of what he is doing and has attended court on a number of occasions.
The applicant’s primary school years are characterised by the family regularly moving to secure cheaper housing with the consequence that he attended a number of schools. Disagreements between his mother and school personnel regarding the applicant being bullied were also a common occurrence.
When the applicant was 11 years old his mother became involved in a second relationship. Whilst the applicant did not initially warm to his mother’s new partner, in time he came to see him as a father figure. The relationship lasted six years. Two sons were born of the relationship. The applicant does not know the reasons for the failure of the relationship and, whilst disappointed by it, was not overly affected. His mother has since entered a further relationship and given birth to a fifth child.
The applicant describes his mother as a “good mum”. In her care he was never abused nor neglected. He said she worked hard to support him and his brother and has continued to be supportive of him despite his offending and his drug and alcohol abuse.
As with his primary schooling, the applicant’s secondary schooling, such as it was, was largely characterised by his attendance at a number of schools. He was regularly a target for bullying until he began to fight back resulting in his being suspended on numerous occasions. As a student his grades were average – “B’s and C’s”.
The applicant left school in year 9, aged 15. By this time he had developed a drug problem with associated behavioural difficulties arising from his having been abused at the age of 11. His abuser was a maternal uncle in whose care he and his brother would be left whilst their mother worked.
With the exception of working for a fast food restaurant for three months when he was 13, the applicant has been unemployed. Since leaving school he has lead an unstable and chaotic lifestyle involving drug and alcohol abuse and association with an antisocial peer group. His mother has been his sole source of financial support.
The applicant’s alcohol and drug abuse is linked to his having been sexually abused. He did not disclose his having been abused until early January 2015. He says he was so traumatised and confused by what had occurred that he tried to pretend it never happened and to block it out. Over time he became increasingly emotionally distraught and found it harder to cope with frequent intrusive thoughts and nightmares. His distress was compounded by the ongoing contact he had with his abuser. He has said that upon seeing his uncle at family gatherings he felt physically sick. In these circumstances, alcohol and drugs helped him cope.
The applicant first disclosed the fact that he was abused to his mother on 14 January 2015. She encouraged him to report the matter to police. He did so, and his mother accompanied him to the police station. Two days later he committed the aggravated robbery. To this point in time the applicant’s involvement with the criminal justice system consisted of a drink driving offence and the offence of driving a motor vehicle without holding a licence.
From age 14 the applicant smoked cannabis and drank alcohol excessively. He developed a tolerance with the consequence that he went in search of other substances “to make him forget”. He would take the Valium and Serapax that had been prescribed for his mother’s anxiety and depressive conditions. He then began to abuse the Xanax, Panadeine Forte and Fluoxetine that had been prescribed for him by his general practitioner whom he had been consulting weekly for over three years up to his being remanded in custody. His practice was not to take the medications in accordance with direction, but, rather, to take them in quantities greater than the prescribed dose. His abuse of the medications came to light when he overdosed on eight boxes of Fluoxetine in an attempt to commit suicide. Thereafter his doctor monitored his prescription drug use. The consequence was that he turned to his associates and others in the community for substitutes. The applicant denies using illicit drugs other than cannabis.
By the age of 17, the applicant was an alcoholic. He had been admitted to emergency hospital units numerous times due to self-harming tendencies and suicide attempts related to his substance abuse and overdoses.
The applicant has no memory of committing the aggravated robbery. He said that at the time he had taken a “cocktail” of Xanax, Valium, Oxazepam and alcohol. He does not know what motivated him to commit the offence. His earliest memory is of waking up in the Flinders Medical Centre in a panic, having been taken there by police upon his arrest.
The applicant was granted home detention bail with electronic monitoring on 5 May 2015. At the direction of his Community Corrections Officer he attended an inpatient detoxification facility. After two days and upon attending drunk, he was “kicked out”. This occurred around 15 or 16 May 2015.
Throughout his time on bail the applicant was permitted to take the various prescription drugs that his doctor had prescribed for him. He quickly returned to the abuse of those drugs. On 18 May 2015 his Community Corrections Officer asked that he attend to provide a sample for urinalysis. At the same time he was advised that his leave passes, which entitled him to leave home to go food shopping, were cancelled. By this same time, he had used all prescription medications prescribed for him. Believing that he would not be given a pass to see his doctor that day and angry at his treatment, he cut off his electronic monitoring anklet and headed to the shopping centre where he knew he would find associates who could provide him with alcohol and drugs.
The following day the applicant committed the robbery upon the service station in Hutt Street. Again he professed no memory of his offending, stating that he had drank a 75ml bottle of spirits and taken 50 (12mg) Xanax pills, about 25 (25mg) Valium pills, and about 25 (35mg) Oxazepam pills in the hours leading up to the offence.
In her report Dr Lim states:
It is my opinion that Mr Williams continues to meet the diagnostic criteria for Posttraumatic Stress Disorder (PTSD) at the present time, which is directly linked to his experiences of a sexual assault perpetrated by a close family member when he was 11 years old. Reportedly, he did not divulge the abuse or seek professional assistance in the aftermath of the incident. It would appear that Mr Williams had initially attempted to actively suppress his memories of the assault by pretending it did not occur, but when that did not work he turned to alcohol and cannabis as a teenager, as an avoidant strategy, to cope with his intrusive memories instead. Over time, he likely developed a physiological tolerance to those substances, which resulted in his need to use a wider variety of drugs of increasingly higher potency, mostly from alcohol as well as the benzodiazepines and opiate classes of medications, to continue to manage his psychological distress and trauma memories in a maladaptive manner.
It is in this context of Polysubstance Abuse/Dependence that Mr Williams’ current series of offending behaviours had occurred. He was clearly significantly under the influence of alcohol when he cut his Home Detention bracelet off. Furthermore, despite his minimal recollection of the robberies, it was likely that Mr Williams had been seeking funds to purchase more alcohol and benzodiazepines at the time of those offences. It is considered that his state of intoxication on a “cocktail of drugs and alcohol” would therefore, have impacted on his judgement, his ability to consider the consequences of his actions, and to regulate his behaviours appropriately.
Consideration
In Dinsdale v The Queen Gleeson CJ and Hayne J said:[2]
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.
[2] (2000) 202 CLR 321 at [6]; See also, Hili v The Queen (2010) 242 CLR 520 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

In Hili v The Queen French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[3]
... what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.
[3] (2010) 242 CLR 520 at [60].
The offences committed by the applicant are each of a kind where general deterrence and condign punishment play large parts in the determination of the appropriate penalty. In relation to the offence of aggravated robbery upon a vulnerable business using a weapon, in R v Place (Place) Doyle CJ, Prior, Lander and Martin JJ said:[4]
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 are crimes in respect of which general deterrence and 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 penalty appropriate for those types of armed robberies committed by those types of offenders is in the order of six to eight years imprisonment.
[4] (2002) 81 SASR 395 at 429.
In the wake of this guidance, and accepting that the applicant’s offending on 16 January 2015 falls within the class of armed robberies referred to in the passage from Place quoted above, and that the standard penalty remains current,[5] the penalty imposed for the 16 January 2015 aggravated robbery appears merciful, indeed, the total period of imprisonment for all three offences appears merciful.
[5] R v Smoker (2016) 126 SASR 201.
That said, it must be remembered that the standard identified in Place serves as a guide but does not fetter the sentencing discretion.[6]
[6] Wong v The Queen (2001) 207 CLR 584 at [61]-[63] (Gaudron, Gummow and Hayne JJ).
In the present case, the combination of youth, intoxication, and mental illness serve to temper the demands of general deterrence and condign punishment.
Starting with youth. It is to be recalled that the applicant had only just turned 18 when he committed the aggravated robbery and was barely 18 ½ when he breached the conditions of his bail and robbed the service station.
In Azzopardi v The Queen Redlich JA, with whom Coghlan and Macaulay AJA agreed, set out the principles applicable to sentencing a young adult.[7] Firstly, the common law understands that young offenders, being immature, are “more prone to ill-considered or rash decisions”.[8] They “may lack the degree of insight, judgment and self-control that is possessed by an adult”[9] and may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
[7] (2011) 35 VR 43; See also, KT v The Queen (2008) 182 A Crim R 571 at [20]-[26] (McClellan CJ at CL).
[8] The Queen v McGaffin (2010) 206 A Crim R 188 at 210, [69].
[9] Director of Public Prosecutions v TY (No 3) (2007) 18 VR 241 at 242, [43].
Secondly, the common law accepts that there is greater “potential for young offenders to be redeemed and rehabilitated”.[10] This is because they are still at a stage of mental and emotional development that is capable of being positively influenced and changed. The rehabilitation of young offenders is one of the objectives of the criminal law and, done effectively, may protect the community from further offending.
[10] The Queen v McGaffin (2010) 206 A Crim R 188 at 210 at [69]; KT v The Queen (2008) 182 A Crim R 571 at [22] (McClellan CJ at CL).
Thirdly, regard must be had to the impact that incarceration in an adult prison can have on a young offender. As acknowledged in The Queen v McGaffin,[11] such an experience will more likely impede, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender will be exposed to corrupting influences that may further entrench their criminal behaviour or exacerbate anti-social tendencies. To expose the youthful offender to such influences runs contrary to the purpose for which punishment is imposed. Self-evidently, the potentially detrimental effect of adult prison on a youth offender has adverse flow-on consequences for the community.
[11] (2010) 206 A Crim R 188 at 210 at [69]; R v Mills [1998] 4 VR 235 at 241 (Batt JA).
Redlich JA also acknowledged that there remains a need to balance the mitigating influence of an offender’s youth with the increased need for deterrence in the case of very serious violent offending.[12] His Honour quoted Batt JA in Director of Public Prosecutions v Lawrence who said:[13]
… with an offence as serious as intentionally causing serious injury and particularly with an instance of it as grave as this one, the offender’s youthfulness and rehabilitation, achieved and prospective, whilst not irrelevant in the instinctive synthesis which the sentencing judge must make, were of much less significance than they would have been with a less serious offence. As has been said, youth and rehabilitation must be subjugated to other considerations. They must, as the President said in Wright, take a “back seat” to specific and general deterrence where crimes of wanton and unprovoked viciousness (of which the present is an example) are involved, particularly where (again as here) the perpetrator has been given previous chances to control his aggressive habits. This is because the offending is of such a nature and so prevalent that general deterrence, specific deterrence and denunciation of the conduct must be emphasised. There is a particular reason why, with this offence, youthfulness of an offender cannot be of much significance. This is that, as this very case exemplifies, the persons who commit the offence and wreak appalling injuries, very often by kicking and stomping upon their prone or supine victims, are predominantly youths and young men acting under the influence of alcohol or drugs or both.
[footnotes omitted]
[12] Azzopardi v The Queen (2011) 35 VR 43 at [39]-[40].
[13] (2004) 10 VR 125 at 132, [22].
Similar sentiments were expressed in R v Pham by Lee CJ at CL, with whom Gleeson CJ and Hunt J agreed, in the context of offenders aged between 17 and 19:[14]
It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes.
[14] (1991) 55 A Crim R 128 at 135. See also, KT v The Queen (2008) 182 A Crim R 571 at [24]-[25] (McClellan CJ at CL).
I turn to the issue of the applicant’s intoxication.
In The Queen v Sewell and Walsh the appellants appealed against their sentences for offences of violence committed whilst under the influence of drink and drugs.[15] Zelling J, with whom Mitchell and Cox JJ agreed, said:[16]
… Mr. Johnson argued that effects of liquor or marijuana are always to be taken in extenuation and not as an aggravation. That is not true. At common law the taking of drink was an aggravation both in relation to mens rea and as to penalty. The motto of the common law was qui peccat ebrius luat sobrius. We have moved away from that concept as far as mens rea is concerned, but there are still many offences in which drink is an aggravation in relation to penalty. There are others in which it is not. For example, a person under the influence of liquor, who is otherwise of a blameless character, may do something which is quite out of character and the liquor may be both an explanation and a factor in mitigation, but in other cases it may swing the penalty towards deterrence. In crimes of violence one may have some hope of putting rational arguments to deter a sober would-be assailant. That chance is much diminished if the assailant is under the influence of drink or drugs. Certainly an assault by a person under such influence is more frightening to the average person. Bray C.J. said in Birch v. Fitzgerald:
“Nevertheless there are offences in which, as it seems to me, the deterrent purpose of punishment must take priority. When people act under the influence of liquor, passion, anger or the like so as to constitute themselves a physical danger or potential physical danger to other citizens it may well be that a sentence of imprisonment will be appropriate, even in the case of a first offender of good character, in order to impress on the community at large that such behaviour will not be tolerated.”
I entirely agree with respect with the observations of Bray C.J. in this matter. I think the Judge was entitled to take the fact these men were to some extent under the influence of alcohol and marijuana as being of importance in a crime of violence, but in any event the Judge only took those circumstances into account along with the boredom and the aimlessness to which he refers. They were in my opinion circumstances that the Judge was perfectly entitled to take into account.
[footnote omitted]
[15] (1981) 29 SASR 12.
[16] The Queen v Sewell and Walsh (1981) 29 SASR 12 at 15.
More recently, in Hasan v R the Victorian Court of Appeal conducted a review of the law regarding intoxication and its relevance to sentencing.[17] The Court observed:[18]
The starting point for most modern discussions of the subject is R v Bradley,where Lord Widgery CJ said:
“This Court finds nothing in the case to indicate that that sentence was other than entirely correct. It is said that he was in drink. So he was. But the day is long past when somebody can come along and say “I know I have committed these offences, but I was full of drink.” If the drink is induced by himself, then there is no answer at all. It is said it is out of character. So it was. He has a clean character. He had no previous convictions at all. It was said that he is a good son to his mother and he has a number of other skills as a citizen.
The plain fact is that on this afternoon he behaved himself in such a manner as to make it absolutely imperative that some suitable condign punishment should be imposed upon him. That was done and the appeal is dismissed.”
This dictum was applied by the South Australian Court of Criminal Appeal in R v Lane,by the Victorian Court of Criminal Appeal in R v Redenbach, by the Queensland Court of Appeal in R v Rosenberger; Ex parte Attorney-General (Qld)and by the Western Australian Court of Criminal Appeal in R v De Jesus. In Redenbach,the Court of Criminal Appeal said:
“Nowadays it frequently occurs that those who attack and kill or seriously injure someone are affected to some extent by drink or drugs. Where this condition is self-induced, it is not generally to be regarded as mitigating the offence, for in most cases the offender may be regarded as morally responsible for his condition at the time of the offence.”
[footnotes omitted]
[17] (2010) 31 VR 28.
[18] Hasan v R (2010) 31 VR 28 at [22]-[23] (Maxwell P, Redlich and Harper JJA).
The analysis of the authorities undertaken by the Victorian Court of Appeal led it to conclude that intoxication, whether by drink or drugs, was not a mitigatory factor. To this conclusion there was, however, an exception – the “out of character” exception. The Court of Appeal traced the exception to the judgment of Zelling J in The Queen v Sewell and Walsh where his Honour said that the effect of drink may mitigate where the offender “otherwise of a blameless character may do something which is quite out of character and the liquor may be both an explanation and a factor in mitigation”. The Court of Appeal’s survey of the authorities led it to conclude:[19]
Because the out of character exception has been so rarely applied, there has been almost no judicial exploration of the circumstances in which the exception might be applicable. It seems clear enough, however, that the circumstances must be quite exceptional before intoxication at the time of offending can mitigate the offender’s moral culpability.
On ordinary principles, the offender would bear the onus of showing that he/she did not know what effect alcohol would have on him/her.Given the widespread use of alcohol, and the fact that even a non-drinker would be well aware of its effects on a person who becomes intoxicated, this is doubtless a difficult burden to discharge. Moreover, an attempt to invoke the exception also carries with it the forensic risk that an investigation of the offender’s drinking habits might lead to the conclusion that the state of intoxication was an aggravating rather than a mitigating circumstance.
[footnotes omitted]
[19] (2010) 31 VR 28 at [33]-[34] (Maxwell P, Redlich and Harper JJA).
The Queen v Sewell and Walsh is binding upon this Court. In that case I do not think that Zelling J was intending to state a rule to the effect that intoxication could not mitigate offending save and unless the offender fell within the “out of character” exception. In my view Zelling J did not intend to be so categorical. It is important to note that his Honour’s remarks were made in response to an argument advanced by counsel for the appellants that “the effects of [intoxication] are always to be taken in extenuation and not as an aggravation”.[20] Zelling J rejected that proposition.[21]
[20] The Queen v Sewell and Walsh (1981) 29 SASR 12 at 15.
[21] The High Court disapproved of Hasan v R in Director of Public Prosecutions (Vic) v Dalgliesh(a Pseudonoym) [2017] HCA 41, [84] but on different grounds.
It must be remembered that all factors relevant to sentencing cannot be divided into those that mitigate and those that aggravate. In this regard in Weininger v The Queen Gleeson CJ, McHugh, Gummow and Hayne JJ said:[22]
In addition to the points just made about what is known to the sentencing judge, there is another important feature of fact finding in sentencing which must be recognised. Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so. The matters that must be taken into account in sentencing an offender include many matters of and concerning human behaviour. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple.
[22] (2003) 212 CLR 629 at [22].
It is commonly understood that drink and drugs disinhibit. Some people become aggressive, some emboldened, some reckless, some despondent. For others again, it numbs the pain. In some cases intoxication will deny any suggestion of premeditation or deliberation,[23] in others the offender may have a history of intoxication and violent conduct.[24] Into the mix must be thrown the community’s expectations. As a general rule violence fuelled by intoxication cannot be tolerated. Neither can sexual offending where the offender is emboldened by drink or drugs to satisfy his or her desires without regard to the other person and whether they are consenting.
[23] R v Coleman (1990) 47 A Crim R 306 at 327.
[24] R v Fletcher-Jones (1994) 75 A Crim R 381.
The fact of an offender being intoxicated and the reasons for his or her intoxication will be important to the fashioning of a sentence intended to protect, punish, deter and rehabilitate. One need only contrast the circumstances of the applicant in this case who used drugs and alcohol to cope with the consequences of his having been abused with the circumstances of the appellants in The Queen v Sewell and Walsh to demonstrate the point.
At the end of the day sentencing is individualised. Where the offender is intoxicated, to limit the relevance of intoxication to the question of whether it aggravates or mitigates the offending risks misjudging the complexity of the individual and failing to appreciate the forces that impacted upon his or her conduct which will be relevant, in turn, to the assessment of the need to protect, punish, deter and rehabilitate. Put slightly differently, it may be accepted that ordinarily intoxication does not mitigate and that the intoxicated offender cannot expect any reduction because they were intoxicated, and it may be accepted that the offender’s intoxication may in some circumstances aggravate their offending, but mitigation and aggravation aside, the offender’s intoxication will be relevant to any explanation for their offending which, in turn, is important to an assessment of the need to protect, punish, deter and rehabilitate.
Addiction often explains offending.[25] It is rarely mitigatory. Where it is mitigatory it is because the addiction cannot be said to have been the product of a free choice. “Self induced intoxication or addiction at an age of rational choice involves moral culpability for the predictable consequences of that choice”.[26] In a different context, but no less relevant, Gleeson CJ remarked on the notion of freedom of choice:[27]
Metaphysical disputes about issues concerning free will and determinism open up a range of problems about the concept of “free choice” in which the law has never become involved. There are no doubt some who would regard the law’s approach to the question as, at best, grossly oversimplified and as hopelessly unscientific; cf Hill, “Freedom, Determinism and the Externalization of Responsibility in the Law: a Philosophical Analysis” (1988) 76 Georgetown Law Journal 2045. However, law is a practical and normative science, and is constrained to evaluate, and not merely observe, human nature and conduct. As one author has pointed out, “every science works upon distinctive postulates, and where there is a need to evaluate conduct some degree of autonomy is a necessary postulate” (Hall, General Principles of Criminal Law (2^nd ed, 1960), p 455).
[25] As to the relevance of addiction see Bourke v The Queen (2010) 199 A Crim R 38 at [26] (McClellan CJ at CL, Price and RA Hulme JJ agreeing).
[26] Bourke v The Queen (2010) 199 A Crim R 38 at [28] (McClellan CJ at CL, Price and R A Hulme JJ agreeing).
[27] R v Azar (1991) 56 A Crim R 414 at 418 (Gleeson CJ).
Like addiction, self-medication to overcome psychological and physical trauma, if the product of a free choice, can rarely mitigate.[28]
[28] Bichar v R [2006] NSWCCA 1 at [25] (Howie J, Basten JA and Hall J agreeing).
I turn to the relevance of mental illness. Section 10(1)(l) of the Criminal Law (Sentencing) Act 1988 (SA) requires a sentencing court to have regard to the mental condition of an offender in determining both the head sentence and the non-parole period. This reflects the common law which has long recognized that the mental condition of an offender is always relevant in sentencing. The topic was recently dealt with by this Court in R v Hronopolous.[29] In that case, after considering Martin J’s comprehensive treatment of the issue in R v Wiskich[30] and the judgment of Gleeson CJ in R v Engert,[31] embraced by French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ in Bugmy v The Queen[32] and by French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ in Munda v Western Australia,[33] I concluded: [34]
… Thus, within the bounds of proportionality, a sentence is to be fashioned having regard to the protection of the community and the purposes of punishment that fits the offending and the offender. Within that framework the question of how a particular mental illness influences the sentencing outcome will be a product of its symptoms and consequences for the defendant and the bearing that such symptoms and consequences have on achieving the purposes of the sentencing task. Critical to the task will be the exposure of a link grounded in the evidence before the sentencing court between the illness and any of the purposes of punishment or the mode of punishment under consideration.
[29] [2017] SASCFC 143.
[30] (2000) 207 LSJS 431.
[31] (1995) 84 A Crim R 67.
[32] (2013) 249 CLR 571.
[33] (2013) 249 CLR 600, [72]-[73].
[34] [2017] SASCFC 143.

In the present case youth, intoxication, and mental illness cannot be separated out and dealt with in isolation. The applicant’s mental state may be linked to his sexual abuse. Being young and left to his own resources, he may be considered to have been ill-equipped to cope alone. And yet he chose to deal with his abuse himself, turning to drink and drugs to cope. That compromised his schooling and his opportunities generally. He built up a tolerance for his intoxicants of choice. He sought more and stronger drugs. In and amongst this cycle he told his mother and the police of his having been abused which would have taken great courage. Then within 48 hours he committed the aggravated robbery in an intoxicated state.
The applicant’s circumstances did not escape the sentencing Judge. In my view the sentencing Judge was right to conclude that the applicant’s culpability was less than that of the ordinary armed or aggravated robber to which the standard articulated in Place applies. He was right then to fix a head sentence for the aggravated robbery falling below the range set in Place.
Whilst the applicant’s circumstances suggest his culpability to be of a lesser order than the ordinary armed or aggravated robber to which the standard articulated in Place applies, it cannot be said that a starting point of five years was plainly wrong. The maximum penalty was life imprisonment. The applicant’s circumstances explain his conduct, but they could not be said to be causative. General deterrence remains an important consideration albeit tempered to some extent to account for the applicant’s youth and mental state and then balanced against the fact that offending of this type is frequent.
Although no victim impact statements were tendered, the impact of aggravated robberies of the type committed here on people who work in vulnerable businesses such as service stations can be devastating. Some people never return to such work, others often need the help of mental health professionals. It is not uncommon for the impact upon the immediate victim to have a ripple effect upon their relationships with family and friends. Then there are the costs for employers and businesses. Whilst the demands of general deterrence must be somewhat tempered in this case, I bear in mind what fell from French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ in Munda v Western Australia:[35]
… the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.
[35] (2013) 249 CLR 600 at [54].
I accept that the applicant’s prospects of rehabilitation may be considered reasonable, however, in my view it cannot be said that the sentence imposed in relation to the aggravated robbery was plainly wrong.
I turn to the robbery. The maximum penalty for that offence was 15 years imprisonment. This was a separate incursion into criminality. Accordingly, it was appropriate that the penalty imposed be ordered to be served cumulative on the aggravated robbery. The offending was also aggravated by the fact that it was committed whilst the applicant was on bail for the aggravated robbery.
No victim impact statement was provided by the employee of the service station that was robbed by the applicant. I accept that the applicant did not have a gun. It is understandable that the service station employee would take no chances. No doubt he or she was in fear. Offending of this type is frequent. General deterrence attracts significant weight. Again I bear in mind the applicant’s youth, post-traumatic stress disorder and intoxication and the relevance of those things in combination to his ability to approach the challenges he faced with a level of maturity and judgment ordinarily expected. However, it must also be borne in mind that by this time the applicant had the benefit of supervision to which he did not respond.
In all the circumstances I cannot say that a starting point of three years imprisonment for the robbery was manifestly excessive.
In my view the total period of imprisonment imposed for the offences of aggravated robbery and robbery was not manifestly excessive.
I have also considered the proportion of the non-parole period to the head sentence. It is settled that a non-parole period reflects the minimum proportion to the head sentence that must be served to achieve the purposes of the head sentence.[36] In Lowe v The Queen Gibbs CJ said:[37]
No doubt there should be an appropriate relationship between the sentence imposed on an offender and the minimum term after which he becomes eligible to be released on parole. What is appropriate must depend very much on the circumstances of the case, and the exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion.
[36] Power v The Queen (1974) 131 CLR 623 at 629 (Barwick CJ, Menzies, Stephen and Mason JJ); Deakin v The Queen (1984) 58 ALJR 367; Bugmy v The Queen (1990) 169 CLR 525 at 531 (Mason CJ and McHugh J), 538 (Dawson, Toohey and Gaudron JJ); Hili v The Queen (2010) 242 CLR 520 at [40] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Knight v Victoria (2017) 91 ALJR 824 at [8] (The Court).
[37] (1984) 154 CLR 606 at 610.
And in The Queen v Robinson, in a passage referred to with approval by Dawson, Toohey and Gaudron JJ in Bugmy v The Queen,[38] King CJ said:[39]
... it seems to me that in deciding whether to fix a non-parole period and in determining its length, the South Australian courts should be guided by the ordinary principles of sentencing. A judge may consider that in a particular case justice requires that the offender spend a minimum period in confinement or that the crime was so outrageous that the conscience of the community would be affronted by the offender’s early release. He may consider that a minimum period of confinement is necessary to deter the offender or others from future criminal activity. He may in assessing the sentence have been influenced by the need to protect the community from the criminal propensities of the offender and may consider that this can be achieved only by a minimum period of detention. He may believe that prospects of the offender’s reformation may be enhanced by a stiff period of detention, although in this regard the Judge would doubtless have in mind the point made by Bray C.J. in Reg. v. Collingridge that the Parole Board is in a better position than the Court to estimate the effect of imprisonment on the offender and the extent to which release under supervision will promote his prospects of rehabilitation. These and other considerations arising out of the accepted sentencing principles may incline a Judge to fix a non-parole period, and, if he decides to do so, should guide the exercise of his discretion as to its duration.
[footnote omitted]
[38] (1990) 169 CLR 525 at 538.
[39] (1979) 22 SASR 367 at 369-370.
Adopting this approach it is difficult to see why in the present case a total period of imprisonment of six years and four months is warranted if 12 months is all that is required to achieve the purposes of the head sentence. Alternately, it is difficult to see how 12 months is all that is required to achieve the purpose of the head sentence if a head sentence of six years and four months is appropriate. The “appropriate relationship” appears lacking. That suggests one of two things; error or the extension of mercy. My conclusion regarding the starting points identified by the sentencing Judge in relation to each of the offences of aggravated robbery and robbery has the consequence that in my view there was no error committed in that respect. As to the length of the non-parole period, on whatever view one takes, it is favourable and cannot possibly be considered excessive. There being no appeal instituted by the prosecution asserting manifest inadequacy, it is unnecessary to arrive at a concluded view as to whether the non-parole period is erroneous. What is plain is that the sentencing Judge was acutely aware of the personal circumstances of the applicant, his relative youth, abuse, self-medicating and the challenges he faced. Further, the sentencing Judge considered that in all the circumstances the community was best protected by a non-parole period that heavily fostered rehabilitation. In my view, it cannot be said that the non-parole period was manifestly excessive.
I turn to the question of whether the sentencing Judge erred in declining to suspend the sentence imposed. In R v Buckman King CJ said of s 9 of the Offenders Probation Act 1913 (SA), a predecessor to s 38 of the Criminal Law (Sentencing) Act 1988 (SA), that it was a power exercisable where “imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways”.[40] As to when “good reason” to suspend a sentence of imprisonment otherwise merited arises, or when it is appropriate to give an offender a last chance, the three questions which Zelling J thought must always be asked where a sentencer is considering a non-custodial penalty in the alternative to imprisonment, assist:[41]
These are: (a) How do the extenuating circumstances fit into the pattern and context of the offence viewed as a whole? (b) Is the man likely to respond to a non-custodial sentence so as to reform and rehabilitate his life style (sic) or is he merely seeking by the use of exercises and forensic eloquence to escape the due reward of his misdeeds? (c) Does the community’s need and also its duty to suppress an active social evil whether that need and duty be expressed legislatively by Parliament in statutory form or factually by the prevalence of the offence, the difficulty of its detection, and the serious consequences to the community its commission, outweigh the Judge’s duty to be as compassionate as the circumstances admit, in dealing with any person appearing before him who has been convicted of a criminal offence?
[40] (1988) 47 SASR 303 at 304.
[41] Kowald v Hoile (No 2) (1976) 14 SASR 314 at 319-320.
In the present case the potential “good reason” is to be located in the relative youth of the applicant and his personal circumstances. For the reasons given above those circumstances suggest that the applicant’s culpability is less than the ordinary aggravated robber. However, it is difficult to be as forgiving of the second incursion into criminality, committed at a time when the applicant was on home detention bail and had the benefit of supervision by a Community Corrections Officer.
The applicant’s prospects of rehabilitation are reasonable, if for no other reason than he is young and over time likely to benefit from assistance.
I agree with the sentencing Judge’s assessment of the seriousness of the offending. In my view, it cannot be said that in concluding that offending of such seriousness and the fact that the second robbery was committed whilst the applicant was on bail for the aggravated robbery some four months later, coupled with the importance of general deterrence, albeit somewhat tempered, are outweighed by the applicant’s personal circumstances and prospects of rehabilitation. The “community’s need and also its duty to suppress an active social evil” that is prevalent and the serious consequences to the community of the commission of offending of this type warrants that the sentence of imprisonment be served. In my view the sentencing Judge cannot be said to be plainly wrong in concluding that good reason to suspend the sentence of imprisonment imposed did not exist.
Conclusion
I would grant an extension of time in which to apply for permission to appeal, the point having not been strongly opposed by the Director. In my view permission to appeal should be granted on the basis that it is reasonably arguable that the relationship between the total period of imprisonment imposed and the non-parole period suggests that the total period of imprisonment was manifestly excessive. I would, however, dismiss the appeal.