Stokes v The Queen

Case [2020] SASCFC 9

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

STOKES v THE QUEEN

[2020] SASCFC 9

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Bampton and The Honourable Justice Lovell)

25 February 2020

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 - PRIOR CRIMINALITY

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - PROTECTION OF COMMUNITY

CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE

The appellant pleaded guilty in the Magistrates Court to 12 offences including serious criminal trespass, aggravated serious criminal trespass, three counts of aggravated robbery, two counts of making off without payment, property damage, contravention of firearms regulations, unlawful possession of a firearm, failing to answer questions, and attempting to escape custody. He was sentenced in the District Court to a head sentence of 18 years, five months and five days imprisonment with a non-parole period of 14 years and eight months. The appellant appeals against his sentence on the ground that the sentence and non-parole period are manifestly excessive.

Whether the sentence imposed was outside the range of permissible sentences – serious repeat offender – antecedent history – proportionality – protection of the community – personal and general deterrence

Held, per Lovell J (Peek J agreeing), granting permission to appeal but dismissing the appeal:

1. The sentence is not manifestly excessive.

Per Bampton J (dissenting):

1. The sentence is manifestly excessive.

Sentencing Act 2017 (SA) ss 26, 53, 54; Criminal Law (Consolidation) Act 1935 (SA) s 254(2a), referred to.
Veen v The Queen (No 2) (1988) 164 CLR 465; Gilshenan v The Queen [2019] NSWCCA 313; R v Karnage [2019] SASCFC 82; R v Copeland (No 2) (2010) 108 SASR 398; R v Standley [2016] SASCFC 141; R v Scott [2017] SASCFC 96; R v Place (2002) 81 SASR 395; R v Caplikas (2002) 223 LSJS 46; Postiglione v The Queen (1997) 189 CLR 295; Pearce v The Queen (1998) 194 CLR 610; Mill v The Queen (1988) 166 CLR 59; R v Palmer [2016] SASCFC 34, considered.

STOKES v THE QUEEN
[2020] SASCFC 9

Court of Criminal Appeal: Peek, Bampton and Lovell JJ

  1. PEEK J:   I would grant permission but dismiss the appeal.  I substantially agree with the reasons of Lovell J.

  2. BAMPTON J:  Jason Lee Stokes pleaded guilty in the Magistrates Court to 12 offences comprising one count of serious criminal trespass, one count of aggravated serious criminal trespass, three counts of aggravated robbery, two counts of making off without payment, property damage, contravention of firearms regulations, unlawful possession of a firearm, failing to answer questions, and attempting to escape custody.

  3. Mr Stokes was sentenced by a District Court Judge who imposed seven individual sentences, each reduced by 30 per cent on account of the guilty pleas.  The Judge…

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Stokes v The Queen [2020] SASCFC 9
Case
[2020] SASCFC 9
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CaseChat Overview and Summary

The appellant, Mr. Stokes, pleaded guilty to twelve offences, including serious criminal trespass, aggravated serious criminal trespass, aggravated robbery, making off without payment, property damage, firearms offences, failing to answer questions, and attempting to escape custody. He was sentenced in the District Court to a head sentence of 18 years, five months, and five days imprisonment, with a non-parole period of 14 years and eight months. Mr. Stokes appealed this sentence, arguing it was manifestly excessive. The appeal was heard by Peek, Bampton, and Lovell JJ.

The central legal issue before the Full Court was whether the sentence imposed by the District Court was outside the range of permissible sentences, considering Mr. Stokes' status as a serious repeat offender, his antecedent history, the need for proportionality, and the purposes of sentencing, including the protection of the community and deterrence. The court was required to assess the totality of Mr. Stokes' criminal behaviour and determine if the aggregate sentence was just and appropriate.

The Court found that while Mr. Stokes was a serious repeat offender with poor prospects of rehabilitation, necessitating a severe sentence, the total starting point of 28 years for the offending was outside the available range and therefore manifestly excessive. The Court applied principles of sentencing that consider the gravity of offences, the offender's history, and the need for both personal and general deterrence. The Court noted that any release on parole is a matter for the Parole Board.

The Court granted permission to appeal, allowed the appeal, and set aside the sentence imposed in the District Court. In resentencing, the Court considered the maximum penalties for each offence and imposed a series of cumulative and concurrent sentences, resulting in a revised head sentence and non-parole period.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I would grant permission to appeal, allow the appeal and resentence Mr Stokes.Background The offending can be summarized as follows, noting that six of the 12 offences committed by Mr Stokes were committed on 29 April 2018. Serious criminal trespass in a place of residence at Alma On 17 April 2018, Mr Stokes trespassed on an unoccupied residential premise at Alma (“the Alma residence”) and stole ammunition reloading equipment.[2] Mr Stokes attempted to burn the reloading equipment 12 days later which conduct forms the basis of the property damage offence detailed below. I will refer to the serious criminal trespass and the property damage as “the Alma offending”.[2] Count 1 on DCCRM-19-113.Aggravated robbery at Prouds In the early hours of the morning on 20 April 2018, Mr Stokes broke a window of the Arndale Shopping Centre (“the centre”) and entered the centre holding a tomahawk. Upon being confronted by a cleaner, Mr Stokes ran towards the cleaner who attempted to run away saying, “please don’t hurt me”. Following the interaction with the cleaner, Mr Stokes made his way to Prouds the Jewellers (“Prouds”) within the centre and smashed a window gaining access to a watch cabinet. Mr Stokes was confronted by a security guard, who had been alerted by the cleaner. The security guard yelled at Mr Stokes asking him what he was doing. Mr Stokes replied, “Hey, what are you fucking going to do?”. Mr Stokes then fled the scene having stolen and damaged watches to the value of $6,019. This offence is aggravated because Mr Stokes used or threatened to use an offensive weapon when committing the offence. I will refer to this offending as the “Prouds robbery”.[3][3] Count 2 on DCCRM-19-10. Note: Count 1 on DCCRM-19-10 was withdrawn on 30 November 2018.Making off without payment On 25 April 2018, Mr Stokes made off without paying for petrol from a service station at Mile End.[4]The six offences committed on 29 April 2018[4] Count 1 on DCCRM-19-112.Making off without payment On 29 April 2018, Mr Stokes again made off without paying for petrol from a service station at Ridleyton.[5][5] Count 2 on DCCRM-19-112.Aggravated serious criminal trespass and aggravated robbery at Prospect After leaving the service station at Ridleyton on 29 April 2018, Mr Stokes made his way to a residence in Prospect (“the Prospect residence”) at about 10.30 am. Mr Stokes waited until a man and his son left the house before entering through the backdoor. However, a woman who was colouring her hair in the bathroom remained in the house. The woman heard someone enter the house and rummage around. Thinking it was her husband returning to collect something, she called out to him. Upon hearing the woman’s voice Mr Stokes, who was carrying a sawn-off firearm, and wearing a skullcap and mask, broke down the locked bathroom door, discovering the woman who was naked to the waist. Mr Stokes ordered the woman to get down on the floor. She did not get down. Mr Stokes then asked the woman where her purse was. The woman put on a dressing gown and began to scream. Mr Stokes told the woman, “I do not want to hurt you, but I will if I have to. Just do what I say”. Mr Stokes took the woman to the kitchen, then the bedroom, searching for her purse. As the pair moved throughout the home, Mr Stokes kept the firearm aimed at the woman. The woman offered her watch to Mr Stokes, who refused and demanded jewellery. Eventually the woman offered containers of costume jewellery, which Mr Stokes took. She then gave Mr Stokes cash from the kitchen, and ran back to the bathroom to proffer an iPad whilst begging Mr Stokes to leave. Mr Stokes left the house and the woman ran into the street pleading for help from members of the public.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would grant permission to appeal, allow the appeal and set aside the sentence imposed in the District Court.Conclusion In resentencing, I keep in mind that the maximum penalties for the offences committed by Mr Stokes are:·serious criminal trespass in a place of residence — imprisonment for 15 years;[22]·aggravated robbery — life imprisonment;[23]·aggravated serious criminal trespass in a place of residence — life imprisonment;[24]·making off without payment — two years’ imprisonment;[25]·property damage — 10 years’ imprisonment;[26]·contravene provision of the Code of Practice of the Firearms Regulations — $50,000 or 10 years’ imprisonment;[27]·unlawful possession — $10,000 or imprisonment for two years;[28]·failing to answer questions — $20,000 or imprisonment for four years;[29] and·attempted escape custody — two‑thirds of the maximum penalty of seven years’ imprisonment.[30][22] Criminal Law Consolidation Act 1935 (SA) s 170(1).[23] Criminal Law Consolidation Act 1935 (SA) s 137(1).[24] Criminal Law Consolidation Act 1935 (SA) s 170(1).[25] Criminal Law Consolidation Act 1935 (SA) s 144(1).[26] Criminal Law Consolidation Act 1935 (SA) s 85(3).[27] Firearms Act 2015 (SA) s 35.[28] Summary Offences Act 1953 (SA) s 41.[29] Firearms Act 2015 (SA) s 55.[30] Criminal Law Consolidation Act 1935 (SA) s 270A and s 254(1). I consider the following individual sentences to be appropriate for the offences committed by Mr Stokes.The Alma offending In relation to the Alma offending, utilising s 26 of the Act, I would impose a sentence of two years’ imprisonment reduced by reduced by 30 per cent to one year, four months, three weeks, and four days’ imprisonment.The Prouds robbery In relation to the Prouds robbery, like the Judge, I would impose a sentence of six years’ imprisonment reduced by 30 per cent to four years, two months, one week, and six days. I would order that this sentence be served cumulatively on the sentence imposed for the Alma offending.The Prospect offending I would impose the same sentence as the judge for the Prospect offending. Using s 26 of the Act I would impose one penalty starting with 10 years reduced by 30 per cent to 7 years, and order that this sentence be served cumulatively on the sentences imposed for the Alma offending and the Prouds robbery.The Shiels robbery I would take the same starting point as the Judge for the Shiels robbery of six years reduced by 30 per cent to four years, two months, one week and six days’ imprisonment. I would order that two years of this sentence be served cumulatively on the sentences imposed for the Alma offending, the Prouds robbery offending, and the Prospect offending.Making off without payment offending In relation to the two offences of making off without payment, I would impose a single sentence for both offences of six weeks reduced by just under 30 per cent to one month, to be served concurrently with the other sentences.The firearm offending

Ratio Decidendi

Legal Principle Established

The Director submitted that the penalties fixed for the individual sentences were not manifestly excessive when considered against the relevant maxima, the sentencing standard for some of the offences, the gravity of the offences, and Mr Stokes’ very poor criminal history. In particular, it was contended that the penalties for aggravated robbery committed on the two jewellery businesses were merciful having regard to the standard enunciated in Place, the circumstances of the offences themselves, and the fact that Mr Stokes had a prior conviction for armed robbery. It was pointed out that the Judge expressly stated that he needed to consider whether the aggregate sentence which he had arrived at was “just and appropriate”, having regard to the totality of Mr Stokes’ criminal behaviour. Having done so, the Judge was of the view that the sentence was just and appropriate and, therefore, no further discount or adjustment was required.Consideration Mr Stokes is a serious repeat offender whose spate offending committed on 17, 20, 29 April and 2 August 2018 demanded a severe sentence. His prospects of rehabilitation can only be considered poor. Despite such a poor prognosis, as with any offender sentenced to imprisonment, the Court does not know whether positive steps will be made toward a prosocial life as eligibility to apply for parole approaches.[20] As Kourakis CJ has held in R v Palmer, “judges neither have a crystal ball nor any special intelligence with which to make such predictions”.[21] Any release on parole is a matter for the Parole Board, which considers, amongst other matters, a prisoner’s conduct in custody as well the conditions of release that should be imposed.[20] R v Palmer [2016] SASCFC 34 at [4] per Kourakis CJ.[21] R v Palmer [2016] SASCFC 34 at [4]. On my assessment, bearing these matters in mind and taking into account Mr Stokes’ serious criminal conduct, the fact that he was – by force of s 53 of the Act – a serious repeat offender, his low prospects of rehabilitation, the need for personal and general deterrence, his age and his personal circumstances, the sentence imposed is manifestly excessive. A total starting point of 28 years for the offending committed by Mr Stokes was outside the available range. I would grant permission to appeal, allow the appeal and set aside the sentence imposed in the District Court.Conclusion In resentencing, I keep in mind that the maximum penalties for the offences committed by Mr Stokes are:·serious criminal trespass in a place of residence — imprisonment for 15 years;[22]·aggravated robbery — life imprisonment;[23]·aggravated serious criminal trespass in a place of residence — life imprisonment;[24]·making off without payment — two years’ imprisonment;[25]·property damage — 10 years’ imprisonment;[26]·contravene provision of the Code of Practice of the Firearms Regulations — $50,000 or 10 years’ imprisonment;[27]·unlawful possession — $10,000 or imprisonment for two years;[28]·failing to answer questions — $20,000 or imprisonment for four years;[29] and·attempted escape custody — two‑thirds of the maximum penalty of seven years’ imprisonment.[30][22] Criminal Law Consolidation Act 1935 (SA) s 170(1).[23] Criminal Law Consolidation Act 1935 (SA) s 137(1).[24] Criminal Law Consolidation Act 1935 (SA) s 170(1).[25] Criminal Law Consolidation Act 1935 (SA) s 144(1).[26] Criminal Law Consolidation Act 1935 (SA) s 85(3).[27] Firearms Act 2015 (SA) s 35.[28] Summary Offences Act 1953 (SA) s 41.[29] Firearms Act 2015 (SA) s 55.[30] Criminal Law Consolidation Act 1935 (SA) s 270A and s 254(1).