Auld v R [2013] ACTCA 21

Court of Appeal (ACT)|2013-05-10|Before: Gilmour JJ, Nield AJ, Penfold J

1. The appellant is Mr Matthew Kenneth James Auld. He has appealed from a sentence of imprisonment imposed upon him on 12 October 2012 by Penfold J for the offence of aggravated robbery, contrary to s 310(b) of the Criminal Code 2002 (ACT), committed by him on 26 March 2012 against the complainant, Ms KG. The prescribed penalty for the offence of aggravated robbery is imprisonment for a maximum of 25 years, or a fine of a maximum of 2500 penalty units, or both.

2. In determining an appropriate sentence to impose upon him for the offence of aggravated robbery, her Honour was asked by the appellant to take into account, pursuant to s 57 of the Crimes (Sentencing) Act 2005 (ACT), three offences of common assault, contrary to s 26 of the Crimes Act 1900 (ACT), committed by him on 26 March 2012 against Mr PP, Mr AD and Ms LO'R. The prescribed penalty for the offence of common assault is imprisonment for a maximum of two years. We note that her Honour's taking these additional offences into account in determining an appropriate sentence for the offence of aggravated robbery will result in the sentence for the offence of aggravated robbery being more severe than it would have been had it been the only offence.

3. As the appellant's commission of the offence of aggravated robbery amounted to a breach of an undertaking, pursuant to s 13(2) of the Crimes (Sentencing) Act 2005 (ACT), into which he had entered on 27 May 2011 to be of good behaviour for 18 months, that is, to 26 November 2012, following his conviction for an offence of burglary committed on 23 April 2011, her Honour decided to cancel the Good Behaviour Order made on 27 May 2011 and to re-sentence the appellant for the burglary offence.

4. The circumstances which brought the appellant before her Honour are not in dispute. Those circumstances are contained in the Statement of Facts dated 3 August 2012 which was provided to her Honour. Taken from that statement, this is what happened.

5. At about 7.20pm on 26 March 2012 Mr PP was standing on the footpath in Florey Place, in Florey, when he was approached by the appellant, who produced a large kitchen knife from a pocket in his jacket, showed the knife to Mr PP and asked Mr PP for a cigarette. After failing to have the appellant put down the knife, Mr PP used a telephone in a shop in Florey Place to call police. Mr PP watched the appellant until police arrived at the scene.

6. At about 7.30pm on 26 August 2012 Mr AD was sitting in the driver's seat of his car and his girlfriend, Ms LO'R, was sitting in the front passenger's seat of the car, which was parked at the gutter outside the Domino's Pizza outlet in Florey Place, when Mr AD was approached by the appellant, who produced the large kitchen knife, showed the knife to Mr AD and asked Mr AD for a cigarette. Ms LO'R closed the car's front windows and locked the car's doors, after which the appellant walked away.

7. After walking away from Mr AD's car, the appellant came upon Ms KG, who was walking along the footpath of John Cleland Crescent, Florey, towards the underpass off John Cleland Crescent. As they were about to walk past each other, the appellant stepped into the path of Ms KG, with the result that they became stationary, with about a metre between them. Ms KG saw that the appellant was holding a large black-handled kitchen knife in his left hand. The appellant held the knife out towards Ms KG and said, "Give me some money. I need some money... I'm not going to hurt you." Ms KG began to cry and, being fearful that the appellant would steal her handbag or stab her with the knife, she removed a $5.00 note from her purse, and held it out towards the appellant, who grabbed it and walked away. After the appellant had walked off, Ms KG went to her home and called police.

8. On the sentencing hearing on 15 August 2012 her Honour was provided with -

(4) the Statement of Facts related to the offence of burglary committed on 23 April 2011, exhibit C;

(5) Pre-Sentence Report dated 8 August 2012 prepared by Mr W Tjahjadi, exhibit D;

(7) CADAS Report dated 13 August 2012 prepared by Mr T Schwartz, exhibit F;

(8) Certificate of Work Safely in the Construction Industry dated 28 April 2012, exhibit 1;

(9) Statement of Participation and Achievement Summary issued by AMC Education and Training dated 1 August 2012, exhibit 2;

(10) Letter dated 15 August 2012 from The Salvation Army as to admission of the appellant into Canberra Recovery Services, exhibit 3.

We note that the appellant did not give evidence before her Honour.

9. In determining the sentences, her Honour referred to the following matters -

(1) the offence of aggravated robbery is a serious offence;

(2) the offence committed by the appellant fell at the low end of the spectrum of such offences;

(3) the appellant was heavily intoxicated when he committed the offence;

(4) the effect of the offence upon Ms KG, which effect has been significant, as revealed by her Victim Impact Statement;

(5) the appellant pleaded guilty to the offence at an early time (we note that her Honour allowed a discount in sentence of 25% for the guilty plea);

(6) the appellant's background (his parents separated when he was young) and upbringing (marred by his mother's abuse of both alcohol and prohibited drugs), his limited education (he left school during year nine) and employment (he has received the unemployment allowance paid by Centrelink since he attained the age of 18years, notwithstanding having casual employment as a roof tiler on and off);

(7) the appellant's abuse of both alcohol and prohibited drugs and his attempts, which failed, to overcome his abuse of them;

(8) the appellant's physical and mental health problems (pain in his left wrist and depression);

(9) the appellant's criminal record (he has been dealt with for 16 offences, including the offence of burglary committed on 23 April 2011);

(10) the appellant's remorse (shown by his guilty plea and expressed to Mr Tjahjadi);

(11) a doubt about the appellant's prospects for rehabilitation;

We note that, although she did not say so specifically, her Honour was aware that the appellant was subject to conditional liberty at the time when he committed the offence of aggravated robbery and that this constitutes a seriously aggravating factor of the subject offence.

10. On 12 October 2012 her Honour sentenced the appellant as follows -

(1) for the offence of burglary committed on 23 April 2011 - imprisonment for 3 months, and

(2) for the offence of aggravated robbery committed on 26 August 2012, taking into account the three offences of common assault - imprisonment for 2 years 7 months (reduced from 3 years 6 months on account of the appellant's guilty plea, which, as we have noted, is a discount of 25%)

and she ordered that the sentence for the offence of burglary commence on 26 March 2012 and expire on 25 June 2012 and the sentence for the offence of aggravated robbery commence on 26 April 2012 and expire on 25 November 2014, with a non-parole period of 1 year 6 months from 26 March 2012 to 25 September 2013 and a parole period for 1 year 2 months from 26 September 2013 to 25 November 2014.

11. On 8 November 2012 the appellant's solicitor filed the appellant's Notice of Appeal against the sentence imposed upon the appellant by her Honour seeking orders that -

(1) the sentence imposed by her Honour be quashed; and

(2) the appellant be resentenced by the Court of Appeal;

upon the ground that the sentence imposed by her Honour is manifestly excessive.

12. The basis upon which an appeal court will interfere with a discretionary decision of a sentencing judge are well established and we do not see any need to recite it. Suffice it to say that error on the part of the sentencing judge must be shown by the judge failing to take into account a relevant matter or taking into account an irrelevant matter, or by the sentence itself being so excessive or so inadequate as to show some error in principle.

13. We have set out, at length, the matters to which her Honour referred to show that her Honour was both detailed and careful in her determination of the appropriate sentence to impose upon the appellant for the offence of aggravated robbery committed by him.

14. As we understand him, the appellant's counsel did not submit that her Honour failed to take into account a relevant matter or that she took into account an irrelevant matter, but rather he submitted that her Honour's sentence is manifestly excessive when compared with other sentences imposed upon other offenders for the offence of aggravated robbery and that, even if the sentence is held to be within range, the non-parole period is too long.

15. We have been referred, by both the Crown prosecutor and the appellant's counsel, to a number of cases in which an offender was sentenced for the offence of aggravated robbery. We note that the factors in each case differ from the factors in each other case and from the subject case. As the appellant's counsel wrote in his submissions, "No two crimes and no two offenders are alike". Frankly, we do not get much help from these cases, other than the general principle that a sentence of imprisonment is appropriate for the offence of aggravated robbery.

16. Accepting, as the appellant's counsel submitted, that

(1) the offence of aggravated robbery committed by the offender was opportunistic, unplanned and unsophisticated;

(2) the offender did not use actual violence towards Ms KG; and

(3) the offender's only threat was the production of the knife;

in addition to the matters referred to by her Honour (see [9] above), we fail to see that a starting point of imprisonment for 3 years 6 months is manifestly excessive for the offence of aggravated robbery committed by the offender. We consider that such a sentence as a starting point (before the discount for the guilty plea) is well within the range of her Honour's sentencing discretion.

17. Also, we fail to see that the apportionment of the total sentence of imprisonment for 2 years 8 months into a non-parole period of 1 year 6 months and a parole period of 1 year 2 months is inappropriate. Apportionment of a sentence of imprisonment into a non-parole period and a parole period is something within a sentencing judge's discretion. We fail to see, given that the appellant breached a good behaviour order by committing the subject offence of aggravated robbery and that his past attempts to overcome his abuse of alcohol and prohibited drugs ended in failure, that a shorter non-parole period and a longer parole period is warranted or justified.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the respondent: Director of Public Prosecutions

Solicitor for the appellant: Legal Aid ACT

(Sentencing) Act 2005

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