R v Wilson No. Sccrm-00-173

R v WILSON
[2000] SASC 435

Court of Criminal Appeal: Prior, Olsson and Debelle JJ

1................ PRIOR J......................... When judges fail to disclose a discount in a sentence for a plea of guilty the usual question for this Court is whether, in all the circumstances, the sentence actually imposed is manifestly excessive. The circumstances of this offence and the particular offender are such that, if that were the only question for this Court, I would be disposed to say that the sentence of seven years for the armed robbery, taking into account the period in custody served by the appellant since serving four months for breach of parole conditions, was not manifestly excessive. Suffice it to refer to the recent decision of this Court in Lumsden[1] and the authorities referred to therein. In particular, in R v Rooke[2] the Chief Justice spoke of a starting point of seven years as being “well within the range of sentences usually imposed for armed robbery”. His Honour also said that such a sentence “could have even been higher without being excessive”.

[1] R v Lumsden [2000] SASC 49

[2] (SACCA, 19 June 1998, S6738, unreported)

In my opinion, the sentence of seven years is well within the range of sentences for this offence, even allowing for an early plea of guilty. However, the peculiarity in this case is that the sentencing judge did not appear to give any discount for the plea of guilty on the head sentence at all. Rather, His Honour said, perhaps encouraged to do so by the appellant’s counsel, that he would give effect to the plea of guilty in the fixing of the non-parole period. Such an approach is correct with respect to the mandatory sentence of life imprisonment for murder, but not for a case like this.
I agree with Justice Olsson that the identified error permits this Court to consider the exercise of the sentencing discretion afresh, fettered though it is by the inability to increase the head sentence on appeal. Considering the matter afresh, I would impose a head sentence of no less than the sentence imposed by the sentencing judge here, having regard to the period of some three months spent in custody before sentence and after serving four months in custody from 24 October 1999 for breach of parole conditions. Because of the plea of guilty I too would reduce that sentence to six years cumulative upon the eight months and eight days outstanding from the previous sentence. I would fix a non‑parole period of three and a half years given the particular personal circumstances of the offender. I would make the same order as made by the sentencing judge with respect to the head sentence of six years, eight months and eight days and the non-parole period of three and a half years. That means they would run from the date when the appellant was sentenced in the court below, 29 May 2000.

OLSSON J This is an appeal, by leave, against a sentence imposed upon the appellant, consequent upon his pleading guilty to a charge of armed robbery. He was sentenced by a District Court Judge to seven years imprisonment, to be served cumulatively upon an unexpired balance of parole of eight months and eight days, in respect of a previous offence. This amounted to a head sentence of seven years, eight months and eight days, in relation to which a non parole period of four years was ordered. It is complained that the sentence imposed was manifestly excessive. It is also asserted that the learned sentencing judge erred in failing to disclose the extent of sentence reduction by reason of a timely plea of guilty and by giving insufficient discount for the guilty plea. It is further asserted that he gave too much weight to matters of punishment and too little to matters personal to the prisoner.
The facts giving rise to the charge against the appellant were not in dispute.
At about 4.19 a.m. on Friday 22nd October 1999 two men, of whom the appellant was one, entered the premises of the BP Express Service Station at 402 Main North Road, Blair Athol. The sole employee on duty was the console operator. There were other customers in the merchandising area when the two men entered. When all other customers had left, the appellant and his companion approached the console counter. One of them paid for a packet of chewing gum which was presented to the console operator. Whilst he was getting the change from the cash register, both the appellant and his companion pulled out pocket knives and pointed them at the console operator. One of the two threatened to stab the console operator unless he gave them all his money. The other got on top of the counter, reached across and grabbed notes from the cash register drawer. He also scooped up some coins.
The two men absconded with approximately $200 and some magazines. They threatened the console operator with physical injury if he pressed the duress button before they had gone. Needless to say, the console operator was considerably upset and stressed by the incident. He has ongoing psychological symptoms as a result of the incident.
The appellant is a single man 30 years of age. He is of Aboriginal descent. He has never been in any lasting relationship and has been unemployed for many years. He has an appalling antecedent record, running to some four pages. Between 1981 and the present time he has had many convictions for break, enter and larceny, receiving, illegal use, unlawfully on the premises, wilful damage, assault and assault occasioning actual bodily harm, and a wide variety of street offences of various types. Of particular significance for present purposes is a conviction for armed robbery on 1 June 1995, in relation to which he was sentenced to five years and five months imprisonment, with a non-parole period of three years and three months. He was on parole in respect of that offence at the time of the incident presently under consideration. That was a clear circumstance of aggravation.
A psychiatric report which was before the learned sentencing judge reveals that the appellant has a history of paranoid psychosis, depression, schizophrenia, substance abuse and alcoholism. He has been a regular user of heroin, marijuana and alcohol over a considerable period of time and has mild to moderate alcohol related brain damage. The learned sentencing judge accepted the opinion of a forensic psychiatrist to the effect that, at the time of the offence,
“... [the appellant] was suffering from a mental illness.... He was psychotic with paranoid delusions, psychotic thought disorder, and hallucinations, this being an exacerbation of Chronic Schizophrenia secondary to personal stressors, non-compliance with medication and substance abuse. He was also suffering from a severe Depression with a sense of hopelessness and suicidal thoughts and thoughts of harming others. In addition he was most likely intoxicated at the time, having consumed a flagon of wine on the day of the offence.”

It was noted that, while in custody on remand, the appellant attempted suicide and was admitted to James Nash House. On admission he was found to be acutely psychotic, with an exacerbation of schizophrenia. His condition has since been stabilised with medication.

In the course of his sentencing remarks the learned sentencing judge noted that the appellant had pleaded guilty on his first arraignment in the District Court. He said that he gave the appellant credit for doing so in fixing a non-parole period. However, he did not indicate the extent of such credit nor does it appear from his reasons that he applied any discount to the head sentence.
He concluded his sentencing remarks in these terms:-
"Doctor Tomasic considers that you knew what you were doing in the robbery and that you knew that it was wrong. Thus, there is no reason why the authorities should not be followed, which require a substantial deterrent element to be contained in the sentence to be imposed for this offence, albeit that some allowance is to be made for your mental illnesses. It is a matter of considerable aggravation that you committed this offence about 6 months after being released on parole for a similar offence. Persons like the victim, who work in all-night service stations, must be protected from such robberies.
You have been in custody on this matter since 24 October 1999, but 4 months of that period has been served for breach of parole conditions. As s 75 of the Correctional Services Act applies in this matter, I cannot back date the sentence which is to be imposed upon you, but I take into account that you have been in custody for the balance of the period since 24 October 1999.”
The Court of Criminal Appeal has now stressed, on a substantial number of occasions (and as recently as it decision in R v Wall & Richards (2000) 209 LSJS 135), its expectation that, in the course of their sentencing remarks, judicial officers will indicate, in specific terms, the actual discount given in recognition of a timely plea and co-operation with the authorities. The present case serves to illustrate the difficulties which arise if that expectation is not fulfilled, particularly if there is any doubt as to whether the discount has been applied to the head sentence. It may well become a matter of conjecture as to what starting point was adopted by a sentencing judge for the purposes of his or her task. It is a most unsatisfactory exercise for this court to attempt to review what has occurred on such a basis.
It must be reiterated, in the strongest terms, that it is imperative in the interests of the due administration of justice and to avoid what might otherwise be unnecessary appeals that the consistent pronouncements of the Court of Criminal Appeal be loyally heeded and applied by sentencing judicial officers at all levels.
I return to the approach adopted by the learned sentencing Judge to the discount allowed for the appellant’s timely plea.
In my opinion, on a fair reading of the relevant sentencing remarks, it is beyond doubt that the discount (whatever may have been its quantum) was applied only to the non parole period fixed in this matter.
In The Queen v Shannon [1979] 21 SASR 442, a specially constituted Full Court held that, generally speaking, a plea of guilty is to be taken into account as a factor of mitigation in arriving at a proper sentence, although the weight to be attached to that factor “will vary enormously from case to case”. It is abundantly clear that the court was there focusing on the proper quantum of the head sentence and not the non parole period. Obviously, whatever discount is made to the head sentence will, generally speaking, be reflected in the non parole period, as the latter usually constitutes a proper proportion of the former.
However, if, as here, the discount is applied directly to a non parole period, the primary head sentence not being abated at all, then, plainly, that constitutes a manifest error in the sentencing process. It is not to be forgotten that, if release on parole is not taken or parole is breached, the prisoner may be required to serve the full head sentence. A failure to discount the head sentence could well result in a failure to give proper allowance for mitigating factors in such a scenario. Moreover, the approach adopted by the learned sentencing judge would, in mathematical terms, almost inevitably throw up an erroneous calculation of the time which ought to be served by a prisoner before becoming eligible for release on parole.
In these circumstances it falls to this court to exercise the sentencing discretion afresh.
In my opinion a commencement point of seven years’ imprisonment as a head sentence was appropriate, after taking into account three months spent in custody before sentence and a period of about four months from 24 October 1999 for breach of parole conditions. This is within the range recently adverted to in The Queen v Lumsden [2000] SASC 49. True it is that the fact that the appellant was on parole in respect of a similar offence is, prima facie, a serious factor of aggravation. However, balanced against this must be the important consideration that, at the time of the offence, the appellant was labouring under the effects of a serious mental illness, even if he was still capable of realising that his actions were wrong. Moreover he exhibits some degree of brain damage.
Bearing in mind that, in large measure, the plea of guilty was a recognition of the inevitable, I consider that a reduction of one year in the head sentence for timely co-operation with the authorities and in the administration of justice is the correct level of discount on that score. The head sentence should therefore be six years to run from the expiration of the balance of the previous unexpired parole period of eight months and eight days, which the appellant became liable to serve by reason of the operation of s 75 of the Correctional Services Act.
It then becomes a matter of fixing a new non parole period in respect of the whole period to be served.
Bearing in mind, inter alia, the information currently available concerning the stabilisation of the appellant’s mental health problems and the consequent impact on his general conduct I would fix a non parole period of three years and six months, to run from 29 May 2000, when the appellant was originally sentenced.
I would allow the appeal, set aside the sentence imposed and substitute a new sentence in the terms above indicated.

24.............. DEBELLE J.... I have read the reasons of Prior and Olsson JJ. I agree with the substance of them. I agree with the orders that they propose.

[2000] SASC 435

13 December 2000