Supreme Court of SA|1994-03-21|Before: Mr P, King CJ, Matheson J

DIRECTOR OF PUBLIC PROSECUTIONS v SHANE MICHAEL FERMANER No. SCCRM 94/52 Judgment No. 4468 Number of pages - 4 Criminal law and procedure - armed robbery (1994) 61 SASR 447 (1994) 72 A Crim R 138 [1994] SASC 4468 (21 March 1994)

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL MATHESON(1), PRIOR(2) AND OLSSON(3) JJ

CWDS Criminal law and procedure - Armed robbery - first of four applications by DPP for leave to appeal - suspended sentence of 3 years and 6 months imprisonment and non-parole period of 18 months - importance of District Court observing standards set by Court of Criminal Appeal - leave to appeal granted

Solicitors for appellant: Director of Public Prosecutions

Solicitors for respondent: Legal Services Commission

JUDGE1 MATHESON J This is one of four applications for leave to appeal by the Director of Public Prosecutions, Mr Rofe Q.C. in relation to penalties imposed in the District Court of South Australia for armed robbery. Mr Rofe said that the applications were brought in response to a perception that there has been an erosion of the standard of penalty for armed robbery since sentencing for that offence has been exercised by the District Court as a result of the legislative scheme which came into operation on 6 July 1992.

This court has often referred to the seriousness of the offence of armed robbery and to the great importance of the element of deterrence in fixing penalties for the offence. I propose to quote from three judgments of King CJ in the Court of Criminal Appeal, with every word of which I agree.

The first is The Queen v. Spiero (1979) 22 SASR 543. At pp 548-549, his Honour said: "It must be made clear beyond misunderstanding that when a person engages in robbery, while armed with a weapon, he can expect, when apprehended and convicted, a long sentence of imprisonment. Armed robbery is a crime which leaves little scope for leniency even when mitigating factors are present."

The second is the case of The Queen v. Brett (1987) 140 LSJS 343. At p 344, his Honour said: "It has been said over and over again in this Court that armed robbery is a crime which must be viewed with the utmost seriousness. It puts the victims in fear and sometimes, although not in the present case, in danger. The fear is not confined to the immediate victims of the particular crime. The prevalence of armed robbery in the community puts in fear and causes continuing anxiety to a considerable section of the community whose employment requires them to be in charge of money and other property, particularly where that property consists of drugs. Those who work in establishments of that kind, and particularly those who work in pharmacies and other places where drugs are stored, are entitled to look to the courts for protection and are entitled to expect that the courts will impose punishments which operate, so far as punishments can so operate, as an effective deterrence to persons who are minded to rob such establishments whilst armed."

Finally, I refer to The Queen v. Thomson Unrep.Jt.No. 2870 delivered on 21 May 1991. At p 3, his Honour said: "Armed robbery is a very serious crime and it is necessary for the courts to maintain standards of punishment which one hopes will tend to deter potential offenders from committing these crimes and will give some assurance to the public that the courts are endeavouring to protect them from becoming the victims of crimes involving the use of weapons."

Mr Rofe pointed out that the appropriate standard for armed robbery has been set by this court on a number of occasions since 1979, and referred, inter alia, to the judgments of the Court of Criminal Appeal in the case of The Queen v. Prendergast (1988) 147 LSJS 486, especially at pp 487-488. Counsel for the respondent did not dispute that the appropriate standard is in the range of 8 to 12 years imprisonment in all but very exceptional cases. The maintenance of adequate standards of penalty for particular offences is a recognised role for prosecution appeals, and in that connection it is necessary only to refer to The Queen v. Osenkowski (1982) 30 SASR 212 at pp 212-213. I agree with the submission of Mr Rofe that the maintenance of adequate standards of penalty is especially important in these days when it is a notorious fact that small businesses are having great financial difficulties often necessitating that they open at night, particularly such businesses as service stations, chemist shops, supermarkets and delicatessens.

I express the hope that this Court's decisions on these applications today will remind all sentencing judges of the great importance of maintaining adequate standards of punishment in sentencing for armed robbery.

The respondent was charged on information with the following two counts: "1 On the 5th day of September 1993 at ADELAIDE, in the said State, being armed with an offensive weapon or instrument namely a knife, (he) robbed Nicholas George HARPER of cash of the value of $360.00. Section 158(a) Criminal Law Consolidation Act, 1935 2 On the 5th day of September 1993 at ADELAIDE, in the said State, (he) assaulted David Mark GORDGE, a member of the police force, in the execution of his duty. Section 6(1) Summary Offences Act, 1953"

He pleaded guilty. On the first count, he was sentenced to 3 years and 6 months imprisonment and on the second count he was sentenced to 6 months imprisonment. Both sentences were made concurrent and a non-parole period of 18 months was fixed.

The respondent comes from Western Australia and the offences were committed whilst he was temporarily in South Australia waiting for a friend to arrive to go with him to a football match in Victoria. There was an element of planning in the offence in that the knife and balaclava were purchased to do a robbery. As the learned trial Judge said in addressing the respondent: "You were short of money and decided to commit a robbery to get some". It was a typical armed robbery on a vulnerable service station, and occurred at 3.50 a.m. The amount of money involved was $360, of which $180 was recovered. It will be noted that although the victim was not injured, he subsequently suffered from nightmares and had to seek counselling.

The respondent was 30 years of age at the time of the offence. He had some prior convictions, including some for assault in Western Australia, but had never previously been sentenced to a term of imprisonment.

He pleaded guilty at the earliest opportunity and there is no question that is a very important factor in mitigation. He also had a psychiatric history dating back to 1983. He was diagnosed as suffering a low grade paranoid psychosis and the learned sentencing Judge accepted the possibility of his medical condition playing a role. The Judge was informed that the respondent was returning to Western Australia, and that he intended to have further treatment there from his psychiatrist. This court was informed that he had in fact returned to Western Australia.

One of the problems about this application is the attitude taken by the prosecutor before the trial Judge. He told his Honour that the prosecution adopted a neutral attitude on the application for suspension of the sentence, and gave the court no assistance on the appropriate standard for armed robbery.

I have no doubt that the head sentence and non parole period that were fixed were manifestly inadequate. If it were not for the early plea of guilty, and the fact that the respondent had spent nearly 5 months in custody at the time of sentencing, I would have fixed a head sentence in the region of 8 years.

I would grant leave to appeal, allow the appeal and increase the head sentence for armed robbery to 5 years and 4 months having regard to the period spent in custody. I would not interfere with the penalty fixed on the second count. I would fix a new non-parole period of 4 years.

The question of whether this court should set aside the suspension of sentence has occasioned me much concern. It is only in very exceptional circumstances that suspension of sentence is appropriate for armed robbery. In the end I have decided that the court should not interfere, having regard especially to the attitude of the prosecutor. In that connection I refer to remarks of Crocker J in R. v. Economedes (1990) 58 ACrimR 466 at pp 469-470.

JUDGE2 PRIOR J I agree that leave to appeal should be granted. I concur in the sentence and non parole period proposed by the President. Like the President, I have considerable concern about the prosecutor's failure to assist the Judge with respect to sentences. I am reluctantly persuaded that the prosecutor's attitude with respect to remaining neutral on the matter of a non parole period means that this Court should decline to interfere with respect to the suspension of the sentence.

JUDGE3 OLSSON J I agree with what has fallen from the President. For myself, I would only wish to reinforce what he has said in relation to the importance of appropriate sentencing standards being maintained in relation to offences of this type. I think that in this case, the particular circumstances (including what was said by the prosecutor to the learned sentencing Judge) are such that it would be inappropriate to require the relevant suspension to be revoked. I am therefore in accord with what is proposed by the President.

DIRECTOR OF PUBLIC PROSECUTIONS v SHANE MICHAEL FERMANER No. SCCRM 94/52 Judgment No. 4468 Number of pages - 4 Criminal law and procedure - armed robbery

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DIRECTOR OF PUBLIC PROSECUTIONS v SHANE MICHAEL FERMANER No. SCCRM 94/52 Judgment No. 4468 Number of pages - 4 Criminal law and procedure - armed robbery (1994) 61 SASR 447 (1994) 72 A Crim R 138 [1994] SASC 4468 (21 March 1994)

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