Soun v The Queen; R v Soun - [2021] SASCA 119

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
SOUN v THE QUEEN; R v SOUN
[2021] SASCA 119
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice David)
20 October 2021
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 - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - CIRCUMSTANCES OF AGGRAVATION
The applicant was sentenced to a head sentence of four years, six months and four days with a non-parole period of two years and eight months for one count of aggravated robbery, contrary to ss 137 and 5AA of the Criminal Law Consolidation Act 1935 (SA). The applicant stole a handbag from a 90-year-old woman who was using a walking frame. The robbery involved violence sufficient to put the victim in hospital after she fell.
The applicant seeks permission to appeal the sentence out of time on the ground that it is manifestly excessive and there were other errors made. The DPP cross appeals on the ground that the sentence is manifestly inadequate.
Held (per the Court), refusing permission to appeal and dismissing the appeal:
1.No issue of principle is raised by the proposed appeal.
2.It cannot be said that the starting point of just under five years was manifestly excessive or manifestly inadequate, or that any of the suggested errors is arguable.
3.There is no utility in granting an extension of time.

Oatley v The Commonwealth Director of Public Prosecutions [2021] SASCA 108; R v Betts [2011] SASCFC 27; R v Brant [2018] SASCFC 72; R v Gannon (2012) 113 SASR 1; R v Gauci [2017] SASCFC 166; R v Harradine & Harradine [2012] SASCFC 103; R v Hevko [2018] SASCFC 22; R v Hosking (2017) 128 SASR 37; R v Place (2002) 81 SASR 395; R v Sumner; R v Fitzgerald (2013) 117 SASR 271; R v Williams [2006] SASC 237; Rendic v The Queen [2021] SASCA 23, considered.

SOUN v THE QUEEN; R v SOUN
[2021] SASCA 119
Court of Appeal - Criminal: Livesey P and David JA
THE COURT
Introduction

The applicant commenced this appeal seeking permission to appeal against sentence on the sole ground that the sentence is manifestly excessive.
On 7 July 2021, the sentencing Judge imposed a sentence of four years, six months and 11 days, and fixed a non-parole period of two years and eight months for the charge of aggravated robbery, contrary to ss 137 and 5AA of the Criminal Law Consolidation Act 1935 (SA), the maximum penalty for which is life imprisonment. The aggravating feature is that the offence was committed knowing that the victim was over 60 years of age.
The appeal is out of time and an extension is required.
By amended grounds filed on 14 October 2021, after this hearing was set down, the applicant now raises the following grounds:
1.The sentence is, in all the circumstances, manifestly excessive (Ground 1);
2.The sentencing Judge erred in the exercise of his discretion in not considering whether or not good reason existed to suspend the sentence and in refusing to consider home detention on the basis that the offending is too serious: “your offending is simply too serious for me to consider suspension or order that a term of imprisonment be served on home detention” (Grounds 2 and 3); and
3.The sentencing Judge erred in not allowing a specific reduction in sentence on account of the early guilty plea (Ground 4).
The Director of Public Prosecutions contends that the proposed grounds of appeal are plainly unarguable. Indeed, the Director has filed a notice of cross appeal, contending that the sentence is manifestly inadequate. That cross-appeal is only to be pressed if the applicant obtains permission to appeal and s 157(2) of the Criminal Procedure Act 1921 (SA) operates. Otherwise the cross appeal will be withdrawn.
The circumstances of the offending
Following a trial, on 26 March 2021 the applicant was found guilty of the aggravated robbery of a 90-year-old woman in the Arndale Shopping Centre. Having just withdrawn some of her pension monies from an automated teller machine, the elderly victim was moving through the shopping centre using her walking frame. The strap of her handbag was looped around the left handle of the walker and the victim’s left hand was on the strap.
The applicant crouched low behind the victim before grabbing her handbag and pulling it, pulling the walking frame away. The victim attempted to hold onto the frame, lost her balance and fell onto the floor of the shopping centre.
The applicant then made off with the handbag, dropping it into a bag being held by a co-offender.[1] A male witness managed to retrieve the handbag from the co-offender before the applicant and her co-offender fled the shopping centre. Much of this was depicted on CCTV.
[1] The co-offender pleaded guilty to assisting the offence of theft, contrary to s 241(1)(b) of the Criminal Law Consolidation Act 1935 (SA).
The circumstances of the offender
At the time of sentence, the applicant was 32 years old, born in Adelaide to Cambodian migrant parents. The applicant was raised in a traditional Cambodian household until she was taken to Cambodia on what she believed was a holiday at the age of 18. On arrival, her parents took her passport and told her that she was required to participate in an arranged marriage. Although the applicant went through the traditional engagement ceremony, after returning to Australia she ran away and moved in with a boyfriend whom she later discovered was a heroin user. The applicant soon became addicted to heroin and, in 2010, she was sentenced with her boyfriend as co-accused for trafficking heroin.
Although the applicant reconciled with her parents, her relationship has remained strained because of subsequent relationships with drug users. The applicant’s mother is the primary carer of the applicant’s children. They were aged 7 and 8 at the time of sentence.
Although the applicant was a good student, she only completed some tertiary study. She has enrolled in a foundation program with Flinders University with a view to undertaking a Bachelor of Social Work. The applicant has only a limited employment history and her antecedents include suspensions of sentence and terms of imprisonment.
The sentencing Judge’s remarks
The sentencing Judge regarded drugs as the applicant’s primary criminogenic factor. The applicant expressed a desire to remain free from heroin and, whilst incarcerated, was drug free.
The sentencing Judge was conscious of general deterrence, recognising that the victim was particularly vulnerable. The victim sustained a pelvic fracture of the left hip and was hospitalised. Subsequently, she developed severe lower limb oedema, leg cellulitis and leg wound infections. She spent time in hospital with significant pain, dying there a few months after the robbery. The sentencing Judge explicitly did not sentence the applicant in respect of the death, although he did take into account that the force involved in the robbery required that the victim be admitted to hospital.
At the time of the robbery on 19 March 2019, the applicant was on parole and subject to parole conditions. She stole in order to maintain her drug habit. The sentencing Judge noted the applicant’s remorse.
The sentencing Judge gave credit for the four months and 27 days spent in custody prior to release on bail. The sentencing Judge regarded the offending as “simply too serious” to consider suspension or an order that imprisonment be served on home detention.
Proposed appeal ground 1 and cross-appeal: manifest excess or inadequacy
It is necessary to put this offending into context. In R v Place, the Court of Criminal Appeal established the sentencing range of six to eight years imprisonment for offences of armed robbery.[2] The application of the standard is not inflexible and will depend upon a range of personal and objective circumstances associated with the offence and the offender.[3]
[2] R v Place (2002) 81 SASR 395, [100] (Doyle CJ, Prior, Lander and Martin JJ): these crimes “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”.
[3] R v Harradine & Harradine [2012] SASCFC 103, [22] (Sulan J, with whom White and Nicholson JJ agreed).
In R v Gannon, the Court emphasised the importance of maintaining a substantial difference between sentences for armed robberies and basic offences of robbery.[4] In R v Brant, the Court confirmed the need for this distinction, and provided guidance as to the appropriate starting point of four years for offences of robbery without the use of a weapon:[5]
In Gannon, after reviewing the cases of R v Blackmore, R v Van Huizen, R v Betts and R v McGlynn, I concluded that the starting point for robberies from retail premises or from individuals, either without violence or with some violence, but not involving a weapon, was generally four years.[6]
(footnote not in original).
[4]     R v Gannon (2012) 113 SASR 1, [33] (Kourakis J).
[5]     R v Brant [2018] SASCFC 72, [30] (Kourakis CJ, with whom Kelly and Blue JJ agreed). See R v Dickinson [2021] SASCFC 23.
[6]     The offending in R v Van Huizen (unreported, Court of Criminal Appeal, SA, 23 February 1990) and R v Betts [2011] SASCFC 27 were aggravated as the robberies were committed in company, with the maximum penalty being imprisonment for life. R vBlackmore [2004] SASC 298 and R v McGlynn [2011] SASCFC 74 were basic robbery offences, for which the maximum penalties were 14 years and 15 years imprisonment, respectively.
In R v Sumner; R v Fitzgerald, the Court noted the purpose of aggravating features of an offence:[7]
The evident purpose of differentiating between an offence in its aggravated and non‑aggravated forms is to provide for a higher maximum penalty if there are present circumstances of aggravation. That purpose is linked to historical sentencing principles that the penalty for a single offence should be higher where there are present circumstances of aggravation.
[7] R v Sumner; R v Fitzgerald (2013) 117 SASR 271, [134] (Blue J).
This Court has often emphasised the inherent seriousness of offences committed on vulnerable victims,[8] particularly the elderly.[9] The aggravating feature of the victim’s advanced age in this case, obvious because she was using a walking frame for mobility, required significant emphasis. The community, particularly the elderly, are entitled to feel safe in public.[10]
[8] R v Place (2002) 81 SASR 395, [100]-[101] (Doyle CJ, Prior, Lander and Martin JJ); R v Gannon (2012) 113 SASR 1, [27]-[33] (Kourakis J); R v Betts [2011] SASCFC 27, [19]-[20] (White J, with whom Doyle CJ and Peek J agreed).
[9] R v Gauci [2017] SASCFC 166 (Blue, Stanley and Hinton JJ).
[10] R v Williams [2006] SASC 237, [13] (Gray J, with whom Doyle CJ and Duggan J agreed).
It cannot be said that the starting point of just under five years before credit was given for time spent in custody was manifestly excessive. Likewise, we do not regard the sentence as manifestly inadequate. Permission to appeal this ground is refused.
Proposed appeal grounds 2 and 3
It is next convenient to address the complaints regarding suspension and home detention.
In Rendic v The Queen, Bleby JA discussed the consideration required of the sentencing court when determining available sentencing options by reference to remarks made in BRK v Police:[11]
Justice Livesey in BRK was not describing a process by which a judge, by instinct, may select a sentencing option from those available and then reason toward that outcome. Rather, his Honour was advocating a holistic approach, in line with general principles of rationality and reading the Sentencing Act as a whole, that canvasses all appropriate and available sentencing options.
…
The Director submitted that in BRK, Livesey J was describing nothing more than that, in the course of the instinctive synthesis exercise, certain sentencing options are quickly eschewed as inappropriate, before evaluating those to which serious consideration must be given as falling within the range. I agree with this characterisation.
[11] Rendic v The Queen [2021] SASCA 23, [44], [46], referring to BRK v Police [2020] SASC 116.
In Oatley v The Commonwealth Director of Public Prosecutions, this Court affirmed that reasons will be inadequate if an appeal court is unable to ascertain the reasoning upon which a decision is based, and sentencing remarks must be read presuming that the sentencing judge knows the sentencing law.[12] Whilst it will usually be appropriate to briefly address why keys submissions are rejected, each case must depend on its particular circumstances.[13]
[12] Oatley v The Commonwealth Director of Public Prosecutions [2021] SASCA 108, [29], [31] (Livesey P, Lovell JA and Stanley AJA).
[13] Oatley v The Commonwealth Director of Public Prosecutions [2021] SASCA 108, [29].
In R v Hevko, Nicholson J said there will be cases where the basis upon which home detention has been refused is relatively straightforward and it may not be necessary for a Judge to set out detailed reasoning.[14] Similarly, in R v Hosking Blue J observed that, if the offending is sufficiently serious, it will be inappropriate to impose home detention,[15] relying on R v Dell, where the Court said that it was sufficient that the sentencing court expressed a conclusion, namely that it was not appropriate to exercise the discretion to make a home detention order.[16]
[14] R v Hevko [2018] SASCFC 22, [62].
[15] R v Hosking (2017) 128 SASR 37, [60].
[16] R v Hosking (2017) 128 SASR 37, [63] referring to R v Dell (2016) 126 SASR 571, [69].
The same might often be said about suspended sentences. In many cases, once the essential circumstances of the offending and the offender are appreciated, the offending may well be too serious to warrant a suspended sentence and little more need be said about why there is not “good reason” to make an order for suspension.
When the sentencing remarks in this case are read as a whole, the basis upon which the sentencing Judge refused both suspension and home detention is clear. No error was made in doing so. Permission to appeal these grounds is refused.
Proposed appeal ground 4
The applicant offered a plea of guilty to the lesser offence of aggravated theft, which was rejected. The sentencing Judge declined to reduce the sentence after the applicant was convicted following a trial. In doing so, he made no error. Section 40(3) of the Sentencing Act 2017 (SA) sets out the sentencing reductions that may apply where a defendant pleads guilty at specified times to the offence on which the conviction is entered. There was no plea to the “relevant offence” of aggravated robbery at any time.[17] Accordingly, the Sentencing Act 2017 (SA) conferred no power to impose a fixed reduction.
[17] Cf section 40(3)(a) of the Sentencing Act 2017 (SA) and the reference to the “relevant offence”. The previous sentencing legislation permitted a sentencing court, if there was good reason to do so, to reduce the sentence that it would otherwise have imposed by up to 10 per cent: Criminal Law (Sentencing) Act 1988 (SA), s 10C(2)(f).
Whilst the preparedness to plead to a lesser charge may or may not reveal remorse (remorse was acknowledged in this case) and whether the earlier plea conferred some utilitarian benefit,[18] these were general considerations and the sentencing Judge made no error in refusing to make a specified reduction.
[18] Cf R v Bahrami (2020) 137 SASR 327. See also R v Lane (1990) 53 SASR 480, 481 (Jacobs J).
Permission to appeal this ground is refused.
Conclusion
No issue of principle is raised by this proposed appeal. There is no utility in granting an extension of time. Permission to appeal is refused. The appeal is dismissed. The cross appeal is withdrawn.