Shane Lester Harris v R No. SCCRM 93/108 Judgment No. 4006 Number of Pages 6 Criminal Law and Procedure

[1993] SASC 4006

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COX(1), DUGGAN(2) AND DEBELLE(3) JJ

CWDS
Criminal law and procedure - particular offences offences against the person - Common assault and robbery in company - appeal against sentence - appellant and companion robbed and assaulted man near Adelaide and then took him by force in his own car to Victoria and committed further offences there - sentenced by Victorian court for crimes committed in Victoria, and then extradited to South Australia to face charges for the initiatory crimes committed here - need for sentencing Judge to take Victorian sentences into account - effective additional sentence of one year and nine months, unsuspended, with non-parole period of one year and five months not excessive in circumstances.

HRNG ADELAIDE, 15 June 1993 #DATE 15:6:1993
Counsel for appellant:     Mr D Y N Sprod
Solicitors for appellant:    Scammell and Co.
Counsel for respondent:     Mr P J L Rofe QC
Solicitors for respondent: Director of Public Prosecutions (SA)

ORDER
Appeal dismissed.

JUDGE1 COX J This is an appeal against the sentence imposed by the Chief Judge in the Central District Criminal Court following the conviction of the appellant on his own confession on two charges: first, common assault, contrary to s.39 of the Criminal Law Consolidation Act and, secondly, robbery in company, contrary to s.158 of that Act. 2. Briefly, the circumstances were these. The victim was a young man who spent a good part of an evening in January 1992 drinking with his friends. He got back to his car in the early hours of the morning and prudently conceded that he was in no condition to drive it home, and decided to spend the rest of the night in the car on the side of the road in a suburban street. He said that he locked the car before going to sleep, but I notice that the appellant and his co-accused challenge that. The matter is not of much moment. 3. The appellant and his friend came into the picture when, early that morning, while the victim was still asleep in the car, they happened upon him as they were walking to find a shop where they could purchase some cigarettes. They saw the car and the lad asleep inside it, and decided that they would like the car and anything that he might have to provide a wherewithal to buy cigarettes and, I suppose, a lot of other things besides; because what they did was to open the door of the car, whether violently or not doesn't much matter, and severely assault the occupant by dragging him out on to the nature strip, punching him around the head, and punching him and kicking him in the stomach. 4. This courageous behaviour on the part of the appellant and his friend reduced the victim to submission, and they then proceeded to drive him to a teller machine, some little distance away in another suburb, where they demanded the victim's PIN number and threatened to continue bashing him if he did not supply it. 5. The victim prudently complied with their demands, with the result that one of the men used the number to get $400 from the machine. That last crime explains the second count, of robbery in company. The first, of common assault, relates to the bashing of the victim at the roadside, disengaged from any attempt to rob him. 6. Now, the rest of the story, alarming though it is, can be told quite briefly. In effect, the appellant and his friend kidnapped the victim and drove him in his own car along the Dukes Highway and into Victoria. Further crimes were committed on the Victorian side of the border, including another robbery, not dissimilar in conduct from the first, at Ballarat. Soon afterwards the victim got free and raised the alarm. 7. As a result of that, the appellant and his friend found themselves charged with a series of offences in Victoria which in due course brought them before Judge Lewis of the County Court at Ballarat. On 6 March 1992, the learned judge imposed like sentences on both defendants for a series of offences that I shall describe. On a charge of theft of a motor car, which I infer is a statutory offence which was apt to describe in Victoria the unlawful use of the victim's car in that State, the 3 defendants were sentenced to three months' imprisonment. For the false imprisonment of the victim in Victoria, the sentence was two years' imprisonment. Count three appears to have been occasioned by some homicidal driving at high speed on the Melbourne side of Ararat, and a reckless driving charge which was laid in respect of that behaviour brought a prison sentence of six months. Finally, for the robbery of the victim of $500 at Ballarat, the judge imposed a sentence of 18 months. He ordered that all of those sentences be served concurrently, so that there was an effective sentence of two years' imprisonment on each defendant, and he fixed a minimum term of 12 months before either of them would be eligible for parole. In fixing those sentences he gave credit for the time the two men had spent in custody awaiting sentence. He also disqualified each defendant from holding or obtaining a driver's licence for three years. 8. I conclude that there is enough similarity between the parole system in Victoria and our parole system here for this court to treat the minimum term fixed by Judge Lewis as the virtual equivalent of a non-parole period in South Australia. It has not been suggested on this appeal that it should be treated in any other way. 9. Now, the County Court judge was at pains to emphasise in his very thorough sentencing remarks that he was drawing a strict line at the South Australian border in his contemplation of the defendants' criminal behaviour. He said more than once that it was not his function to punish the defendants for any crimes they might have committed earlier the same day in South Australia. No doubt, the police had that in mind when, upon the appellant being released on parole in Victoria on the expiration of his minimum term, he was arrested and extradited to South Australia to face what one might call supplementary charges for the two criminal offences which are the subject of this appeal. Indeed, originally he was charged in South Australia with false imprisonment as well, but a nolle prosequi was later entered by the Crown in respect of that last offence. 10. So when the appellant and his companion came before the learned Chief Judge in the District Court, he was obliged - as the County Court judge had been - to maintain a very clear distinction between the criminal behaviour in his own State and the criminal behaviour, which was not his immediate concern, in the second State. 11. It is unnecessary to dwell upon the frightening circumstances of the assault at the roadside and the robbery that followed it. The victim suffered relatively minor injuries - a bleeding nose, a sore neck and an aching face and head - but there seems to have been some emotional consequences, as one might expect, to the victim and his family as well. 12. It is plain that the two South Australian offences were quite serious offences of their kind, particularly the crime of robbery in company. 13. So far as the appellant was concerned, he was a young man when the crimes were committed - still not quite 20 when the learned judge sentenced him - and he had no prior convictions. He has taken steps to see that either the victim or the bank, I'm not sure which, is reimbursed for the loss of $400 in the robbery in this State. 14. It was put to us on the appellant's behalf that he had had a good deal to drink that evening, and perhaps had taken some sort of drug as well, and emphasis was laid, understandably, on a difficult upbringing and an unsettled time as a young adult. All of those things were taken into account by the learned sentencing judge together, of course, with the appellant's plea of guilty. However, they remain serious offences committed in quite frightening circumstances. 15. Whilst the false imprisonment charge was withdrawn, that - as it seems to me - did not mean that the learned judge was not entitled to regard the removal of the victim, from the place where he'd been sleeping in his car, some distance to the bank where the money was obtained as itself an aggravating circumstance of the robbery. But, indeed, one does not need to look around searchingly for justification for a sentence of 1 year and 9 months imprisonment for that particular offence - for that was the sentence that the learned judge imposed. On the first count of common assault, he imprisoned the appellant to 8 months. He ordered that the sentences be served concurrently and, he fixed a non-parole period of 1 year and 5 months. 16. Taken in isolation, the sentences imposed for the South Australian offences must be regarded as very moderate indeed. However, it must be the case, as the learned Chief Judge acknowledged, that he was obliged to have regard also to the Victorian sentences and ensure that, for what was in a real sense a series of offences, one leading on to another in the space of a single day, the total effective sentences and the non-parole periods were not excessive. 17. The grounds of appeal complain that the sentences were manifestly excessive and that the learned judge was also in error in failing to suspend the sentences. This afternoon, however, Mr Sprod has concentrated upon the relatively high proportion that the non-parole period bears to the head sentence. That, as I take it, is a tacit and realistic acknowledgment of the great difficulty that the appellant would have had in persuading this court that a sentence of 1 year and 9 months for the robbery in company - even when regard is had to the Victorian sentence of 2 years - could conceivably be regarded as manifestly excessive. But it is probably correct to say that the non-parole period of 17 months is higher than would usually be imposed, particularly for a young offender with a clean record, where the head sentence is 21 months. 18. I think that, in making an appraisal of the relative disparity - if that is the right term - of the non-parole period with respect to the head sentence in this case, the court must have regard, as no doubt the sentencing judge did, to the combined orders that were made in Victoria and South Australia. If one adds the effective sentences in each State, they total 3 years and 9 months. If one adds the two non-parole periods, they total 2 years and 5 months. So the proportion of the combined non-parole periods is pretty close to two-thirds of the combined head sentences - by no means an unusual proportion for a sentence in this State. Of course, that is not the end of the matter. It is very common in the case of a first offender, especially one of this age, for the judge to make the non-parole period a much smaller proportion of the head sentence than that. I suspect that what the learned judge really did was to reckon the appropriate punishment for the robbery in South Australia as a good deal more than 1 year and 9 months; but, as an act of mercy to the appellant, to reduce that sentence because of matters personal to the appellant and because of the Victorian sentences as well. 19. It was also to be taken into account that the appellant had in fact been released from custody in Victoria and faced the experience of having to be taken into custody again here. All of those things, no doubt, influenced the learned judge in fixing the sentence that he did. But while it is regrettable that the accused must return into custody and while the proportion of the non-parole period with respect to the South Australian sentence is higher perhaps than some judges might have fixed, it is in my view impossible to say that the non-parole period was manifestly excessive. 20. In my opinion, the appeal must be dismissed.

JUDGE2 DUGGAN J I agree that the appeal must be dismissed for the reasons given by Cox J. 2. The main focus of attention of the appeal as it was argued before us was that the non-parole period imposed by the learned sentencing judge was excessive. As part of his argument, Mr Sprod contended that the learned County Court Judge had taken into account as an aggravating feature the aspect of the victim's detention in South Australia. I do not think that that is a correct interpretation of the learned judge's remarks. At p.159 of the appeal book, the learned County Court judge said:- "The offences with which I am concerned and to which you have pleaded guilty are, of course, confined to the State of Victoria." 3. His Honour then went on to deal with the events which took place in Victoria. At p.161 of the appeal book, his Honour continued, after referring to the robbery in Ballarat:- "This transaction took place at about seven minutes past 3 o'clock in the afternoon of 3 January, which meant that approximately 12 hours had passed since you first imprisoned Richards." In my view, this was no more than a description of the victim at that stage and is not to be considered as an indication by the learned County Court judge that he considered the unlawful detention in South Australia in itself as an aggravating factor which he was entitled to take into account in sentencing. 4. As for the length of the non-parole period imposed by the learned sentencing judge, it is to be considered in the context of a moderate head sentence for offences of this type, particularly offences including robbery in company. The learned judge considered that without the important mitigating factor of the plea of guilty, the sentence in the case of the appellant would have been 3 years. This is towards the lower end of the scale for sentences for offences of robbery with violence, which offences include street muggings, and in my view, the circumstances of this case are just as serious, if not more serious, than offences in that category. 5. For these reasons, I agree that the non-parole period cannot be considered to be manifestly excessive; nor can the head sentence. For that reason the appeal should be dismissed.

JUDGE3 DEBELLE J For the reasons given by Cox J, I agree this appeal should be dismissed. To add anything would be quite otiose.