Shortman v The King - [2023] SASCA 60

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
SHORTMAN v THE KING
[2023] SASCA 60
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Bleby and the Honourable Justice David)
8 June 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY
The applicant entered a plea of guilty to aggravated robbery. The applicant, with another, robbed a bottle recycling depot. They concealed their identities, armed themselves with bats and threatened two victims.
The applicant appeals that the sentence imposed was manifestly excessive as the sentencing Judge erred by applying the sentencing range set out in R v Place. The applicant also contends that the sentencing Judge did not appropriately deal with his criminal antecedents.
Held, per the Court, dismissing the appeal:
1. The sentencing Judge appropriately dealt with the applicant’s criminal antecedents.
2. The sentence imposed was not manifestly excessive.
Criminal Law Consolidation Act 1935 (SA) s 137; Sentencing Act 2017 (SA), referred to.
Adams (a Pseudonym) v The Queen [2021] SASCA 47; Hackett v The Queen [2021] SASCA 32; House v The King (1936) 55 CLR 499; Pateras v The Queen (2021) 139 SASR 549; R v Corlett (2017) 128 SASR 521; R v Saleh [2017] SASCFC 75; R v Harradine & Harradine [2012] SASCFC 103; R v Gannon (2012) 113 SASR 1; R v Kelly [2023] SASCA 22; R v Place (2002) 81 SASR 395; R v Wirth (1976) 14 SASR 291; Rendic v The Queen [2021] SASCA 23; Soun v R; R v Soun [2021] SASCA 119; Wong v The Queen (2001) 207 CLR 584, considered.

SHORTMAN v THE KING
[2023] SASCA 60
Court of Appeal – Criminal: Lovell, Bleby and David JJA

THE COURT: The applicant, wielding a bat and in company with another, robbed a bottle recycling depot of $2,420. After taking into account the applicant’s plea of guilty and allowing for time spent in custody the sentencing Judge imposed a term of imprisonment of five years three months and two days and fixed a non-parole period of two years and 11 months.
The applicant submits that the sentencing Judge failed to appropriately deal with his prior criminal record and that, in any event, the sentence imposed is manifestly excessive.
Background facts
On 7 June 2021, the applicant and Greaves, the co-accused, robbed a bottle recycling depot of $2,420. The applicant planned the offending to replace money, intended for his daughter’s birthday present which he had spent on purchasing methamphetamine for himself. He had previously worked at the recycling depot and was aware of the time when the takings would be at their highest. The applicant prepared for the robbery by stealing a number plate and fixing it to the vehicle he used to commit the offence. He also enlisted Greaves to help rob the recycling depot. The pair concealed their identities and armed themselves with bats.
During the robbery, the applicant and Greaves confronted two employees who were working at the recycling depot. The applicant threatened and pushed them while demanding the money. Unsurprisingly, the victims were traumatised by the incident.
Sentence
The applicant entered a plea of guilty to aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The circumstances of aggravation were the use, or threatened use, of an offensive weapon and that the offence was committed with another. The timing of the plea entitled the applicant to a reduction in sentence of up to 15 per cent.
The sentencing Judge considered various reports and a victim impact statement. He acknowledged the applicant’s limited criminal history consisting of, inter alia, trespass, common assault and driving while disqualified. He did not refer to the applicant’s criminal history again in his thorough sentencing remarks. He accepted that the applicant was remorseful and had paid back the stolen money.
The sentencing Judge considered the applicant’s personal circumstances in detail. He had regard to the hardship a sentence of imprisonment would have on the applicant’s dependents.[1] However, the hardship identified was not so exceptional so as to have a significant effect on the penalty.
[1] R v Wirth (1976) 14 SASR 291; Adams (A Pseudonym) v The Queen [2021] SASCA 47.
The sentencing Judge observed that he was guided by the sentencing principles stated in R v Place (‘Place’).[2] But for the plea of guilty, the sentencing Judge would have imposed a sentence of imprisonment for six years and six months. The applicant’s plea of guilty entitled him to a 15 per cent reduction and the sentencing Judge reduced the term of imprisonment to five years, six months and 10 days. The sentencing Judge then reduced that sentence by three months and eight days to account for time spent in custody and on home detention bail. The final sentence was imprisonment for five years, three months and two days. The sentencing Judge imposed a non-parole period of two years and 11 months. He was unable to find that good reason existed to suspend the applicant’s sentence nor did he consider it appropriate to order that the sentence be served on home detention.
[2] (2002) 81 SASR 395 at [100]-[101].
Grounds of Appeal
The applicant appeals on two grounds as follows:
1.The learned sentencing judge erred in his treatment of the applicant’s criminal antecedents by taking into account prior offence of aggravated serious criminal trespass and common assault (the applicant’s only prior offences of violence or dishonesty) without taking into account:
a.     that the offences were committed between 15 and 20 years prior to the offending before the Court; and
b.    that in the case of the aggravated serious criminal trespass, the offence was committed when the applicant was a youth.
2.     The head sentence imposed was manifestly excessive.
The applicant requires permission to appeal.
Legal principles
The House v The King principles apply to an appellate review of a sentencing decision.[3] The Court in Pateras v The Queen set out those principles as follows:[4]
[3] (1936) 55 CLR 499.
[4] (2021) 139 SASR 549 at [15]-[17].
A challenge to a sentencing judge’s discretionary decision can only succeed if the judge:
1.Made an error of legal principle;
2.Made a material error of fact;
3. Took into account some irrelevant matter;
4. Failed to take into account, or gave in gave insufficient weight to some [exceptional] relevant matter; or
5. Arrived at a result so unreasonable or unjust so as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
Members of an appellate court cannot substitute on appeal a judgment which turns on their own exercise of discretion merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. For an appealable error in the exercise of judicial discretion to be established, the appellate court must be satisfied that what was done by the primary judge in the judgment under appeal amounted to a failure to properly exercise the discretion actually entrusted to the sentencing court. To succeed on this ground, absent identifying a process error, the appellant must establish that the sentence imposed was unreasonable or unjust.
Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.
Ground 1
The applicant submitted that the sentencing Judge made an error in his sentencing remarks by referring to the applicant’s antecedents without dealing with their age.
Stanley J in R v Saleh set out the purpose and nature of sentencing remarks.[5] He said (Nicholson and Hinton JJ agreeing):[6]
It is important to recognise that sentencing remarks are not reasons for judgment. Sentencing remarks are primarily an oral explanation to an offender for the sentence to be imposed. Sentencing remarks are not required to deal with every matter which may be relevant to the sentence ultimately imposed.
Nonetheless, while, as Gray J said in R v Copeland (No 2), the primary purpose of sentencing remarks is to provide an explanation to an offender for the sentence imposed, they must also demonstrate the correct principles have been applied. He said that when sentencing remarks address these concerns, not only is the offender informed about the punishment to which he or she is subject, but it also assists the appellate court in understanding the basis of a sentence when performing its appellate function. So sentencing remarks must be sufficient to enable an appellate court to identify and understand the reasoning of the judge to permit it to properly perform its appellate function. …
(emphasis added; citations omitted)
[5] [2017] SASCFC 75.
[6] R v Saleh [2017] SASCFC 75 at [34], [35].
In R v Corlett, Lovell and Doyle JJ described the context in which sentencing remarks are to be read:[7]
But sentencing remarks do not exist in a vacuum. They must be read and understood in the context of the submissions made at the sentencing hearing. Further, the nature of sentencing remarks, and the desirability of brevity, mean that this context will not always be apparent on the face of the sentencing remarks.
[7] (2017) 128 SASR 521 at [67].
Sufficient sentencing remarks enable an appellate court to identify and understand the reasoning of the sentencing Judge so that it can perform its appellate function.
In his remarks, the sentencing Judge referred in passing to the applicant’s antecedents which were of minor importance given the age of the applicant at the time of the subject offending and the length of time since the previous offending occurred. During sentencing submissions, the sentencing Judge observed that the applicant’s previous offence of assault occurred “20 years ago”. He was not convicted for that offending.
It is not necessary for a sentencing Judge to mention every detail when sentencing an offender. The applicant’s previous offending was of little relevance to the task facing the sentencing Judge. While the sentencing Judge mentioned the offending in passing it is clear from the balance of his remarks and the context of submissions that the previous offending played little role in his sentencing task.
This ground of appeal is not reasonably arguable, and we would refuse permission to appeal.
Ground 2
The applicant accepted that the decision of Place was a “guideline judgment” for offences of this nature and that the starting point of six years and six months imprisonment was within the range suggested in Place. He submitted, however, that the sentencing range in Place is not to be rigidly applied and exceptional circumstances are not needed to depart from it.[8]
[8] R v Place (2002) 81 SASR 395 at [19]; Wong v The Queen (2001) 207 CLR 584.
That Place should not be rigidly applied was accepted by the plurality in Place itself. Doyle CJ, Prior, Lander and Martin JJ (Gray J agreeing) observed: [9]
The critical question is whether the jurisdiction to establish and maintain adequate standards of punishment for crime includes the identification of a standard of penalty by indicating a range of sentences applicable in ordinary cases of particular crimes. As Gleeson CJ pointed out in Wong, there are sound reasons why in exercising the jurisdiction appellate courts may find it useful “to indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence”.
[9] R v Place (2002) 81 SASR 395 at [20].
In South Australia, the sentencing task is governed by the Sentencing Act 2017 (SA) (‘the Sentencing Act’) which was enacted well after Place was decided. The Sentencing Act, as amended, directs the court to treat the protection of the safety of the community as the primary purpose when sentencing.[10] Place has been cited with approval by this court since the Sentencing Act was proclaimed. In R v Kelly,[11] this Court reviewed some recent decisions dealing with the application of Place and nothing in that judgment suggests that the principles enunciated in Place no longer apply. The applicant did not contend to the contrary. However, the applicant submitted, correctly in our view, that what the plurality observed in Place about “discretionary considerations” remains an important matter in sentencing.
[10] Sentencing Act 2017 (SA) s 3.
[11] R v Kelly [2023] SASCA 22; Soun v R; R v Soun [2021] SASCA 119.
In Rendic v The Queen, when considering the operation of the Sentencing Act, Lovell JA (Kelly P agreeing) observed: [12]
Traditionally, a court, when sentencing an offender, had regard to the protection of the safety of the community when determining a proportionate sentence. The protection of society was one factor, amongst many, that the court took into account. Sections 3, 4, 9, 10 and 11 of the Act impact on the sentencing task. The combination of sections 3, 4 and 9 directs a sentencing court to treat the protection of the safety of the community as the primary purpose (paramount consideration) of the sentence to be imposed. Other sentencing purposes, namely to punish, to hold to account, to denounce, to deter specifically and generally and to rehabilitate, remain relevant but are referred to as secondary purposes.
The sentencing discretion is broad. The sections mentioned do not direct the court as to how it must reach its final sentence; the Act is silent in that regard. The direction is that the sentence finally arrived at must achieve the protection of the safety of the community as its primary purpose. As has been observed, the troublesome nature of the sentencing discretion arises from the unavoidable difficulty in giving weight to the various factors to which the court must have regard when determining sentence. Factors bearing on the determination of a sentence frequently pull in different directions. The discretionary nature of the task means that the process does not lead to a single correct answer. The extent to which any factor bears upon the case is a matter of a value judgment. Administration of the criminal law involves individualised justice. It is the obligation of the court to balance the incommensurable factors and arrive at a just sentence which, in South Australia, ultimately reflects the primary purpose, namely the protection of the safety of the community.
…..The sentencing discretion, although broad, is fettered by the Act and common law principles. Section 3 requires that the factors to be weighed be viewed through the prism of the primary purpose. However, provided the final sentence achieves the primary purpose, the weight to be given to the various factors or purposes is a matter for the sentencing court.
[12] Rendic v The Queen [2021] SASCA 23 at [6].
The applicant accepted that his offending was the type of offending to which the principles described in Place apply. However, the applicant submitted the sentencing Judge did not properly have regard to his personal circumstances, which, he submitted, take him out of the range of penalties described in Place.
In particular, the applicant relied upon the following matters:
·Although he had some minor criminal history it was appropriate to treat him as a first offender.
·The offending resulted from a longstanding drug addiction and the offending was directly related to that addiction.
·Despite his drug addiction he had a strong employment history.
·That he had expressed genuine remorse.
·That his offending, whilst serious, was not as serious as what Place, himself, had committed.
The applicant submitted that properly accounting for those factors meant that the appropriate starting point was a term of imprisonment of less than six years.
The respondent accepted that the sentencing range of Place is not inflexible, and its application depends on personal and objective circumstances.[13] However, the range serves to maintain the distinction between sentences for armed robberies and basic robberies.[14] The range also accommodates for higher penalties when circumstances of aggravation are present.[15]
[13] Soun v The Queen; R v Soun [2021] SASCA 119 at [16]; R v Harradine & Harradine [2012] SASCFC 103 at [22].
[14] Soun v The Queen: R v Soun [2021] SASCA 119 at [17]; R v Gannon (2012) 113 SASR 1 at [33].
[15] Soun v The Queen: R v Soun [2021] SASCA 119 at [19].
The respondent submits that the starting point of six years and six months was reasonably open to the sentencing Judge such that this appellate Court cannot intervene. It was an aggravated and serious offence. Despite the applicant’s personal circumstances, prospects of rehabilitation, remorsefulness and the role of drugs and drug addiction, a sentence within the Place range was proportionate. The sentence was within the appropriate range and therefore not manifestly excessive.
Consideration
This Court in Hackett v The Queen set out the applicable principles to a contention that a sentence is manifestly excessive.[16] The Court explained:
The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice. It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.
(citations omitted)
[16] Hackett v The Queen [2021] SASCA 32 at [8].
The issue for determination is whether the starting point of six years and six months was unreasonable or plainly unjust.
The applicant planned the robbery to replace money intended to be spent on his daughter but instead spent on methamphetamine. He chose to rob his previous place of employment at a time he thought the takings would be at their maximum. He prepared by stealing a number plate and affixing it to his car used when committing the offence. He enlisted Greaves and the pair concealed their identities and armed themselves with bats. When committing the offence, the applicant threatened and pushed both victims. One victim sustained bruising and psychological injuries. The offending can only be described as serious.

The applicant was remorseful and paid back the stolen money. He has a good employment history despite having a longstanding drug addiction. The applicant’s relationship with his wife before the offending was unsatisfactory and partly responsible for his drug use. He has now separated from his wife enhancing his prospects of rehabilitation. The applicant accepted that he needed help to cease methamphetamine use.
Consistency in sentencing means consistency in the application of relevant principles, not numerical equivalence in sentences. A sentencing Judge should have regard to what has been done in other cases, but such cases do not necessarily mark the outer bounds of the permissible range of sentences. That is, a history of sentences that have been imposed for particular offending, while identifying a range that has been imposed, does not establish the correct range or that such cases have set the appropriate limits.[17] The extent to which each factor bears upon the case is inevitably a matter of judgment.
[17] Hackett v The Queen [2021] SASCA 32 at [26].
The sentencing Judge here clearly had regard to the principles enunciated in Place including that such principles are not to be rigidly applied. The sentencing Judge had regard to those matters personal to the applicant. No error in his approach has been identified. The sentencing Judge’s approach to this matter was orthodox. Appellate intervention is not warranted unless having regard to all relevant factors, including the degree to which the impugned sentence differs from comparable cases, the appellate court concludes there must have been some misapplication of principle that renders the sentence unreasonable or plainly unjust.
There was much to be said in favour of the applicant. However, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. The sentence is towards the upper end of the range of available sentences. However, in our view, it cannot be said to be outside of the permissible sentencing options available to the sentencing Judge. We do not consider the sentence to be manifestly excessive.
We grant permission to appeal on Ground 2 but dismiss the appeal.
Orders
1.Permission to appeal on Ground 1 is refused.
2.Permission to appeal on Ground 2 is granted but the ground is dismissed.
3.The appeal is dismissed.