Weetra v The Queen

[2021] SASCA 19

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

WEETRA v THE QUEEN

[2021] SASCA 19

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)

26 March 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - OFFENCES ARISING OUT OF SAME TRANSACTION OR COURSE OF CONDUCT

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - TRESPASS TO LAND

Application for permission to appeal against sentence.

The applicant pleaded guilty to six offences committed over the course of three incidents during the early hours of the morning of 1 October 2019, including aggravated robbery, theft and aggravated serious criminal trespass. He was entitled to percentage reductions of 30 per cent for his guilty pleas. The sentencing judge grouped the counts by offence type for the purposes of sentencing and made each group cumulative, imposing a total head sentence of four years, two months and 18 days imprisonment, including reductions for the time the applicant had been remanded in custody. A non-parole period of 18 months was fixed.

The applicant’s Notice of Appeal complained that the sentence was manifestly excessive, and complained of the sentencing judge’s approach in that by grouping the offences in the manner that he did, by type of offence rather than by incident, and making the notional sentence for each group cumulative, the judge failed to apply correctly the principles of concurrency and accumulation that are designed to ensure proportionality.

Held, per Bleby JA (Kelly P and Doyle JA agreeing), granting permission to appeal on Grounds 1 and 2, refusing permission to appeal on Ground 3 and dismissing the appeal:

1.  It is not necessary to determine whether the problematic aspects of the structure of the sentence constitute error. This is not a case where a different sentence should be imposed.

Criminal Law Consolidation Act 1935 (SA) ss 5AA(1)(h), 134(1), 137(1), 169(1); Sentencing Act 2017 (SA) s 26; Criminal Procedure Act 1921 (SA) s 158(7)(a), referred to.
R v Dorning (1981) 27 SASR 481; Giordimania v The Queen [2020] SASCFC 28; Attorney-General v Tichy (1982) 30 SASR 84; R v Copeland (No 2) (2010) 108 SASR 398; R v W, PL [2017] SASCFC 119; R v Reiner (1974) 8 SASR 102; KMC v DPP (SA) (2020) 267 CLR 480; Kentwell v The Queen (2014) 252 CLR 601; R v Kreutzer (2013) 118 SASR 211, considered.

WEETRA v THE QUEEN
[2021] SASCA 19

Court of Appeal – Criminal:    Kelly P, Doyle and Bleby JJA

1. KELLY P:       I agree with the reasons of Bleby JA, and with the orders he has proposed.

2. DOYLE JA:     I agree with the reasons of Bleby JA, and with the orders he has proposed.

3. BLEBY JA:      This is an application for permission to appeal against sentence.

4. Bronson Adam Weetra pleaded guilty to six offences contrary to the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’), committed over the course of three incidents during the early hours of the morning of 1 October 2019. The sentencing judge grouped the counts for the purposes of sentencing, and imposed respective notional sentences for those counts as grouped, as follows:

   ·One count of aggravated robbery contrary to s 137(1) of the CLCA. The circumstance of aggravation was the commission of the offence in the company of one or more persons.[1] The maximum penalty for this offence is life imprisonment.  The sentencing judge notionally sentenced the applicant to four years’ imprisonment, reduced by 30 per cent for the guilty pleas to two years, nine months and 19 days.

   ·Three counts of theft contrary to s 134(1) of the CLCA. The maximum penalty for this offence is 10 years’ imprisonment. The sentencing judge notionally sentenced the applicant for these counts to a single sentence of 12 months’ imprisonment,[2] reduced by 30 per cent for the guilty pleas to eight months and 13 days, to be served cumulatively.

   ·Two counts of aggravated serious criminal trespass, non-residential, contrary to s 169(1) of the CLCA. The maximum penalty for this offence is 20 years’ imprisonment. The circumstance of aggravation was the commission of the offence in the company of one or more persons.[3] The sentencing judge notionally sentenced the applicant for these counts to a single sentence of two years’ imprisonment,[4] reduced by 30 per cent for the guilty pleas to one year, four months and 25 days, to be served cumulatively on the other sentences.

   [1] Pursuant to s 5AA(1)(h) of the CLCA.

   [2] Pursuant to s 26 of the Sentencing Act 2017 (SA).

   [3] Pursuant to s 5AA(1)(h) of the CLCA.

   [4] Pursuant to s 26 of the Sentencing Act 2017 (SA).

5. The cumulative total of these sentences was four years, ten months and 27 days’ imprisonment. The judge made a deduction for the time the applicant had been remanded in custody (nine days) and for time spent on home detention bail (eight months), leaving a total head sentence of four years, two months and 18 days.  He fixed a non-parole period of 18 months. The sentence commenced from 21 October 2020.

6. The Notice of Appeal against Sentence advances three grounds of appeal:

   1.     The learned sentencing Judge erred by making each notional sentence cumulative.

   Particulars

   1.1    The offending was one continuous course of conduct and the sentence should have been aggregated to be made concurrently or partially concurrently across the spectrum of counts 1-6.

   1.2    The head sentence was not reduced for totality.

   2.The learned sentencing Judge erred by utilising s 26 of the Sentencing Act 2017 (SA) to create separate, but accumulated sentences for counts 2-6.

   Particulars

   2.1 The use of s 26 created an artificial division of the penalties imposed that was not reflected by the factual basis for sentence.

   2.2    The sentence for count 2 was incorporated into the single sentence with counts 4 and 6, despite the sentence for counts 2, 4 and 6 being served cumulatively on count 1. The defendant was sentenced on the basis that count 2 formed part of the enterprise concerning count 1.

   2.3    The single sentence for counts 3 and 5 were made to be served cumulatively on counts 4 and 6. The defendant was sentenced on the basis that counts 3-4 and 5-6 were two discreet enterprises forming one course of conduct.

   3.     The head sentence and consequent non-parole period is manifestly excessive.

7. On 12 February 2021, Kelly P referred the question of permission on all grounds to the Court of Appeal.

   The offending

8. The offending occurred in the early morning of 1 October 2019 over the course of three incidents at different locations.

9. The offending the subject of counts 1 and 2, being the single count of aggravated robbery and one count of theft, comprised the last of the three incidents, occurring at about 4:00 am at the Caltex Service Station on Waterloo Corner Road, Burton. A Ms Holman was working the night shift. She heard a bang and saw the applicant smashing and kicking the secured front glass doors. He was wearing almost entirely black, including a bandana and gloves. The applicant threw a rock towards the door three times before the glass smashed and created a hole. A second male entered the building with the applicant, who threatened Ms Holman with words to the effect of, ‘Give me all your money or I’ll hit you’.

10. The second male said, ‘Give me all your smokes’. Both men repeated their demands as Ms Holman emptied the till, and subsequently emptied shelves of cigarette packets into a black milk crate carried by the second male. The applicant went to the back of the store and took some of Ms Holman’s personal belongings, including her handbag and jumper. As they were leaving the service station, the applicant returned Ms Holman’s keys, but not her iPhone. The men took 396 packets of cigarettes and 19 tobacco pouches, with a combined value of $18,787.64, in addition to about $550 in cash.

11. The offending the subject of counts 3 and 4, being one count of aggravated serious criminal trespass and one count of theft, occurred about half an hour earlier at the Burton Road Super Deli. The owner and manager of the deli received a call at about 4:00 am that the shop alarm had been activated.  He drove to the shop where police had already arrived.  He observed that the bottom glass panel of the front door had been smashed, allowing entry to the shop. CCTV footage showed a male entering the store at 3:28 am, and then two males in the store. One male unsuccessfully attempted to open the cigarette cabinet. Both men then proceeded to steal lollies and a tray obtaining 25 Bic cigarette lighters worth $2 each. The clothing of the men matched the descriptions that Ms Holman later gave of the applicant and the second male.

12. The offences the subject of counts 5 and 6, being one count of aggravated serious criminal trespass and one count of theft, were the first in time, occurring at about 1:53 am at the Hong Phat Grocery Store, at Salisbury Downs. CCTV footage captured the incident, recording two men, who matched the descriptions given by Ms Holman, breaking into the store. The applicant and the second male stole cash and special edition $2 coins the owners had been collecting.  The total value of the coins and cash stolen was about $850.

13. At about 5:00 am on the same day, the police tracked the two men to a house in Salisbury East by using the ‘Find my iPhone’ feature on Ms Holman’s iPhone.  Prior to entry, the police observed unopened packets of cigarettes on the road and a green Kawasaki motorbike.  The motorbike was consistent in appearance with a motorbike that police had seen travelling away from the Caltex Service Station when they had first attended there. It had been reported as stolen. The applicant and the second male matched the description of the men captured on the CCTV footage. 

14. The stolen items were located in the house and the applicant was arrested.  He initially denied being involved, claiming he had been at his girlfriend’s house at the time of the three incidents.

15. The sentencing judge found as follows with respect to the circumstances and seriousness of the offending:

    The circumstances of the break-in at the service station were particularly egregious because you had to smash through a door to gain access and then threaten the only person in the premises who was completely exposed to your acts and your demands.

    I am unable to accept that your behaviour can be completely explained by your grief about your family members, particularly your poppa.  In your heavily drug-affected state you committed the offences at the service station after committing these other offences at the other premises.  In my view, it is not realistic to suggest to [sic] that your conduct was so influenced by your feelings of loss.

    I also accept the submissions made on your behalf about the circumstances of this offending and whether or not the standard set in the decision of the Supreme Court in R v Place has any application.  In that case the court held that where an armed robbery takes place on premises such as a service station, and weapons are used to threaten the immediate victim who is vulnerable, then general deterrence and the protection of the public are of particular importance, especially when those crimes are committed by persons addicted to or affected by drugs or alcohol.  It was on that basis that the standard, as it were, was discussed by the court.

    Your case is different because there was no suggestion that you were armed.  However, you committed a violent robbery upon a service station.  You were affected by your ingestion of drugs.  The victim, Ms Holman, was very vulnerable.  You threatened her and you treated her with contempt by taking her possessions. It is on that factual basis that I would sentence you.

16. In addition, the sentencing judge found as follows as to the applicant’s mindset at the time of the offending:

    It appears that your offending was premeditated.  This is obvious from the manner of your offending and the clothing that you wore. Your face and hair were covered.  You wore gloves on both of your hands, and your other items of clothing were dark in colour.  It is also apparent from the circumstances of your offending that if you were unable to steal the items that you desired at one location, you proceeded to a different location and continued offending.

    These circumstances shed light on your mind-set and the intentions prior your offending.  You had planned to carry out these offences and you were not deterred from committing further offences after you had left the first crime scene.  The offences that you committed at the Caltex Service Station were against a soft target and you were in the company of another.  The victim impact statement of Ms Holman speaks of the psychological harm and financial loss that she has suffered as a result of your offending.  The crime of aggravated robbery is one for which general deterrence and the protection of the public are of particular importance.

    The applicant’s personal circumstances

17. The applicant was 18 years old at the time of the offending and 19 when sentenced. He is of Aboriginal heritage, with family connections to the Ceduna and Point Pearce communities. He had a dysfunctional and unstable upbringing, where his earlier childhood was characterised by his parents’ low income and illicit substance addiction. His father served various periods in custody. After his parents’ relationship broke down, the applicant and his siblings moved to live with his grandparents, whom he called his nanna and papa. The applicant had learning difficulties and eventually dropped out of school.

18. At the time of sentencing, the applicant was unemployed, but had worked in the construction industry and obtained his White Card. He had demonstrated efforts to seek employment in that since 2018, he had participated in the Young Nunga program. He had also been offered a 13-week ‘work readiness’ program through Jamtek.

19. The applicant’s papa died in 2019.  This affected the applicant’s behaviour, as his papa was one of the few stabilising factors in his life. The applicant feared the passing of his uncle who had been diagnosed with cancer in early 2020.  He has received ongoing support from his aunt and nanna.

20. The applicant claimed to have been arguing with his family on the day of the offending. His family had decided to go to Moonta for the anniversary of his papa’s death without him. He became angry and attempted to overdose on Valium. He claimed to have had difficulty sleeping and forgot everything, including the offending.

21. The applicant’s antecedent report records offending from as early as 2015, before he turned 14. Past offences include assault, dishonestly taking property without consent, driving or using a motor vehicle without consent, possession of articles to commit offences, aggravated serious criminal trespass and failure to comply with a bail agreement. His offending has breached good behaviour bonds on two occasions. In January 2020, he was sentenced as an adult for the first time, for the offences of resisting police and failing to comply with a bail agreement.  He was sentenced to 28 days’ imprisonment.

22. The sentencing judge took into account the applicant’s personal circumstances, his youth and his history as an Aboriginal man. He took into account the seriousness of the offending and the fact the offences were committed while the applicant was subject to a bail agreement.  He gave express consideration to a comprehensive range of relevant matters.

    The appeal

23. The essential complaint that underpins Grounds 1 and 2 is relatively straightforward. It is that by grouping the offences in the manner that he did, by type of offence rather than by incident, and making the notional sentence for each group cumulative, the judge failed to apply correctly the principles of concurrency and accumulation that are designed to ensure proportionality. The effect was that the judge imposed three cumulative sentences; there was no apparent consideration given to concurrency. Then, by using s 26 of the Sentencing Act 2017 (SA) to impose single sentences for offences grouped by type, rather than incident, he failed to address the factual basis for sentence, or the varying seriousness of conduct at each location.

24. The offending clearly enough constituted a course of offending over a few hours in the early morning.  In R v Dorning, this Court observed:[5]

    The general principle is that where offences arise out of the one course of criminal conduct or activity and are truly connected with each other, the sentences should be concurrent…

    [5]     R v Dorning (1981) 27 SASR 481 at 482 (Walters, Zelling and Williams JJ).

25. That ‘general principle’ is best understood as a tool for ensuring a proportionate sentence, rather than as a default, let alone governing, position.  In the more recent case of Giordimania v The Queen, this Court said:[6]

    The rationale underpinning the principles of concurrency is ultimately the need to ensure that, in a case involving multiple offences, the aggregate sentence is proportionate to the overall criminality and circumstances of the offending and the offender.[7]  Understood in this way, those principles can be seen as but one of the sentencing options or mechanisms available to a sentencing judge in a case involving multiple offences to ensure proportionality in the aggregate sentence, with the sentencing judge retaining a broad discretion in terms of how best to structure the sentence to be imposed, and address the concern to ensure proportionality in the sentence(s) ultimately imposed.[8]

    (Footnotes in original)

    [6]     Giordimania v The Queen [2020] SASCFC 28 at [35].

    [7]     R v Copeland (No 2) (2010) 108 SASR 398 at [102]-[106]; R v W, PL [2017] SASCFC 119 at [36]‑[43].

    [8]     R v W, PL [2017] SASCFC 119 at [36], [38].

26. Thus notwithstanding the Court’s observation as to a ‘general principle’ in Dorning, it was only a year later in Attorney General v Tichy that the Court observed:[9]

    It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively.  According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty.  But such a logic could never hold.  When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet.  But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct… Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice.  The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time.  What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty.  Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate.  Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.  There are dangers in each course.  Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap.  Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.

    [9]     Attorney-General v Tichy (1982) 30 SASR 84 at 92-93 (Wells J, Cox J agreeing).

1. The ‘dangers in each course’ may in turn recommend the facility, when the judge is looking to work justice, of fashioning partial concurrency so as to reflect the true character of the course of conduct, but still to account for the full seriousness of the offending.

2. Any exercise of this latitude that judges have in structuring sentencing requires some level of explanation.  It is well understood that sentencing remarks do not require the same level of detail as written reasons for judgment.  That observation is often made in the context of interrogating whether a judge has sufficiently explained the matters taken into account for the purpose of arriving at a sentence.  In R v Reiner, Wells J said:[10]

   A trial judge, when imposing a sentence, directs his remarks to the prisoner first, and to other people next. They do not constitute a written judgment (they are not “Reasons for Sentence”); they do not purport to represent an exhaustive inventory of the facts and matters taken into account; they are not published as a monograph on the judicial art of sentencing. Speaking for myself, I sometimes omit on purpose certain matters that I have taken into account, because I deem it inadvisable, in the prisoner's interests (for example, in the interests of his ultimate rehabilitation), to mention them. I sometimes wish to stress certain matters, and accordingly mention them alone; it would be wrong to suppose that I have considered nothing more. I sometimes refer to a principle of sentencing; it would be unfortunate if the inference were to be drawn that I knew of no other.

   [10]   R v Reiner (1974) 8 SASR 102 at 114 (Wells J).

3. Similarly, in the same case, Bray CJ observed that:[11]

   a judge's remarks on sentence ought not to be approached by a court of appeal in a hostile or hypercritical manner and that it is not to be assumed that he failed to take into account anything that he did not specifically mention.

   [11]   R v Reiner (1974) 8 SASR 102 at 106 (Bray CJ).

4. There is no verbal formula for making findings or rejecting arguments.[12]  However, it is axiomatic that any sentence requires sufficient explanation for the accused to understand its basis.[13]  This is no less true of the structure of the sentence, in the sense that it must be sufficiently clear from that structure how it is that the sentence speaks to the course of conduct and the seriousness of the offending.

   [12]   KMC v DPP (SA) (2020) 267 CLR 480 at [28] (Kiefel CJ, Bell, Gageler, Keane, Nettle Gordon and Edelman JJ).

   [13]   See generally, KMC v DPP (SA) (2020) 267 CLR 480 at [32]-[33] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

5. I am prepared to infer that by grouping the offences by offence type and imposing single sentences pursuant to s 26 for each group, the sentencing judge incorporated some degree of concurrency to the sentences. However, his remarks on penalty do not expose the degree of any such concurrency. Further, the judge did not group the offences in the most logical manner for sentencing purposes, which would have been to group by event, rather than offence type.

6. I would not go so far as to say that this method of grouping was necessarily erroneous. It does not, as an approach, offend s 26(1) of the Sentencing Act 2017 (SA). The difficulty is that by proceeding in this way, the judge has introduced a degree of opacity to the sentence that does not reflect what was otherwise his careful setting out of the course of offending on the night, thereby obscuring the penal consequences of that offending as he had described it. There is at least a risk, in my view, that this opacity creates a perception that to some degree, the applicant may have been doubly punished.

7. Thus, for example, the notional sentences in respect of the aggravated robbery and the theft the subjects of Counts 1 and 2 respectively were imposed wholly cumulatively, notwithstanding their mutual inextricability within the one event at the service station. The concomitant use of s 26(1) to group Count 2 (theft) with the other theft offences obscures whether that inextricability has been otherwise accounted for. It may have been.

8. Ultimately, however, I do not think it is necessary to determine whether the problematic aspects of the structure of the sentence constitute error.  I do not think that such an error, were it made out, would warrant resentencing.[14]  This is not a case where a different sentence should be imposed.[15]  I reach that conclusion having regard to all of the matters relevant to the offending and the applicant that I have set out above.  These include the seriousness with which Parliament regards this type of offending and the maximum penalties for each of the offences, the circumstances of the offending and the consequences to Ms Holman.

   [14]   Criminal Procedure Act 1921 (SA), s 158(7)(a).

   [15]   Kentwell v The Queen (2014) 252 CLR 601 at [35] (French CJ, Hayne, Bell and Keane JJ, Gageler J agreeing); R v Kreutzer (2013) 118 SASR 211 at [10] (Kourakis CJ).

9. I have also had regard to the applicant’s youth and potential for rehabilitation and the extreme social and economic disadvantages of his background that are, sadly, associated with his Aboriginal heritage.  To this I add the particular circumstances leading to the applicant’s offending in the early hours of 1 October 2019 and his significant criminal history.

10. The sentencing judge took all of these matters into account.  In my view, the notional head sentence of 7 years’ imprisonment was well within the range available to him. The discounts that the judge then applied left a head sentence of four years, two months and 18 days.  The non-parole period of 18 months was mercifully low, having been imposed with regard to the applicant’s youth and his recent approach to his rehabilitation.

11. It follows that I do not consider Ground 3 of the appeal, being the complaint of manifest excess, to have merit.

12. I would grant permission to appeal on Grounds 1 and 2, and refuse permission on Ground 3.  I would dismiss the appeal.