R v LUMSDEN No. SCCRM-99-258 [2000] SASC 49

Court of Criminal Appeal: Prior, Williams and Martin JJ (Ex tempore)

1. PRIOR J. I agree with the reasons given by Martin J and with the orders he proposes.

MARTIN J. The Director of Public Prosecutions ("the Director") seeks leave to appeal against the sentence of three years and six calendar months imposed upon the respondent for the crime of armed robbery. A non-parole period of two years was fixed. The sentence was suspended upon the respondent entering into a bond of $1 000 to be of good behaviour for a period of three years. It was a condition of the bond that the respondent be under the supervision of a community corrections officer and that he obey the directions of the probation officer both as to his place of residence and any treatment required for his drug addiction. The Director has sought leave to appeal on the basis the sentence is manifestly inadequate both in its length and by reason of its suspension.

The facts of the offending can be explained briefly. At about 7.45 a.m. on Tuesday, 20 July 1999, armed with a knife the respondent entered a delicatessen at Mansfield Park and confronted the proprietor. He pointed the knife at the proprietor's stomach and said "Give me the money or I'll kill you". There was no money in the first till and the respondent demanded that the proprietor open a second till. He continued to hold the knife very close to the stomach of the proprietor. When the second till was opened, the respondent grabbed approximately $150 and walked quickly out of the shop.

The proprietor observed that the respondent appeared very tired and had trouble keeping his eyes open. He followed the respondent and saw him riding a bike away from the premises. The proprietor gave chase, but eventually lost sight of the respondent. Within a relatively short time, police apprehended the respondent.

At the time he committed the offence, the respondent was in a drug affected condition. The crime was committed on the spur of the moment and was not well planned. However, as the learned sentencing judge correctly pointed out, the respondent's drug affected condition created a danger because he was armed with a knife and his actions were unpredictable.

The respondent was aged 25 at the time he committed the offence. The learned sentencing judge had the assistance of a report from a clinical psychologist, Mr Fugler, which outlined the respondent's unstable and unfortunate childhood, the details of which it is unnecessary to repeat. The respondent began drinking alcohol at a young age and became depressed and self-destructive following the death of his father. He also became a moderate user of cannabis. In 1998 he began experiencing nightmare activity concerning unfortunate childhood experiences. He was introduced to heroin and found it numbed the distress he was suffering. By the time of the offence the respondent was addicted to heroin and using up to one quarter of a gram per day. A previous attempt to detoxify with the assistance of his sister was unsuccessful. Intoxicated on various substances he purchased a small amount of heroin, but lost it. Following a futile search for the heroin on his pushbike, the respondent decided on the spur of the moment to rob the delicatessen.

The learned trial Judge was informed that the respondent had successfully completed a detoxification process with respect to heroin and was not using drugs. His Honour appears to have accepted that submission and observed that remaining off drugs would be an ongoing battle for the respondent who now understood the root of his problem.

The respondent pleaded guilty at the earliest possible opportunity in the Magistrates Court. He had demonstrated real contrition and shame. The learned sentencing judge correctly gave considerable credit for the early plea and contrition. Although the respondent had previous appearances in the Youth Court, the offence under consideration was his first offence in an adult court. On that basis the learned sentencing judge treated the respondent as a first offender.

The various matters personal to the respondent which operated in mitigation of the offending, in conjunction with the treatment as a first offender, led the learned sentencing judge to take what he recognised was a "most unusual course" in suspending the sentence of imprisonment. His Honour said that he was giving the respondent one last chance to get his life in order and observed that the community would benefit if, as a result of being given such a chance, the respondent was able to completely rehabilitate himself and not reoffend.

I am troubled by the approach that his Honour took to the respondent's prior offending. The respondent had appeared in the Youth Court on eight prior occasions from 1986 to 1991 for offending related to the use of cannabis and numerous dishonesty offences, including twelve offences involving breaking into buildings. No details were given to the learned sentencing judge of the prior offending other than mention in the report of Mr Fugler that the respondent told him he had been convicted "of a number of school breaks".

On occasions it is appropriate to treat a person as a first offender notwithstanding the existence of minor previous offending, particularly when the prior offending has occurred as a youth and is of a totally different character from the offence under consideration. In my opinion, however, the respondent's prior offending over a period of nearly five years was too serious and too substantial in number to be totally ignored for the purposes of sentencing on this occasion. In my view his Honour fell into error in this regard and it was a significant error in the context of his Honour's decisions as to the length of the sentence and the suspension of that sentence. Although the sentencing discretion miscarried in that respect, in my view that error alone would not justify the grant of leave to appeal.

As to the length of the head sentence of three years and six calendar months, in my opinion the Director has succeeded in demonstrating that the sentence is manifestly inadequate. In R v Drumgoon (unreported judgment of the South Australian Court of Criminal Appeal delivered 13 December 1995, No. S5382), the Court observed that the "tariff" for the crime of armed robbery should be regarded as in the order of six to eight years. In R v Rooke (unreported judgment of the South Australian Court of Criminal Appeal delivered 19 June 1998, No. S6738), the appellant and two co-offenders had robbed a service station while one of the co-offenders was in possession of an unloaded .22 rifle. Doyle CJ, with whom Williams and Bleby JJ agreed, said:

"In my opinion, it cannot be said that a starting point of seven years, which is where the judge started, is excessive. A lesser starting point would not have reflected the need for deterrence. The starting point is well within the range of sentences usually imposed for this offence. It could have been even higher without being excessive."

In Drumgoon, the Court observed that the "so called tariff" should not be applied inflexibly. The Court cited with approval the remarks of Cox J, with whom Olsson and Mullighan JJ agreed, in R v Hooper (unreported judgment No. S5048 delivered 21 April 1995):

"It is necessary to say again that a penalty range or tariff for a particular crime, established by the practice of sentencing judges or by decisions made on appeal, is not something rigid and immutable from which no departure, certainly no upwards departure, may ever be made. Any standard range is intended to accommodate the ordinary run of cases, but there will be exceptional cases from time to time that fall outside the range. See The Queen v King (1988) 145 LSJS 278 at 280; The Queen v Prendergast (1988) 147 LSJS 486 at 487-8; Nixon (1993) 60 A Crim R 83 at 88-9. The overriding principle is always the need to fix a sentence that is proportionate to the gravity of the offence - the principle of proportionality, as it has been called. Mr Peek, as I understood him, submitted that the sentencing court should arrive provisionally at an appropriate sentence according to the tariff for the particular offence, the offence being looked at objectively, as it were, for this purpose. The court may then reduce that sentence because of the offender's good record (or for other reasons) but it may not properly increase it because of his bad record, for to do that would be to punish him a second time for his antecedent crimes. That approach, in my opinion, is fallacious. It denies to the tariff its proper flexibility and it ignores the need on occasions to impose a more severe sentence on a particular offender because his record shows that the factor of personal deterrence, say, or the need to protect the public cannot be properly accommodated in any other way."

I also agree with those remarks. However, general deterrence and the maintenance of appropriate sentencing standards are of particular importance when imposing sentence for crimes of armed robbery. In particular, persons who conduct businesses that are vulnerable to this type of offence are entitled to expect that sentences properly reflecting the gravity of the crime and the need for general deterrence will be imposed.

Bearing in mind the need for flexibility and allowing full weight to be given to the plea of guilty, contrition and other factors of mitigation to which I have referred, in my opinion the ultimate sentence is so manifestly inadequate as to demonstrate that his Honour must have fallen into error. It may be that his starting point was too low. His Honour may have given too much weight to matters personal to the respondent and insufficient weight to the importance of general deterrence and the need to maintain adequate standards of punishment.

The specific error by the learned sentencing judge in treating the appellant as a first offender and the manifest inadequacy of the sentence do not necessarily justify the grant of leave to the Director. In the joint judgment of the majority of the High Court in Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299 and 300, the Court emphasised that the jurisdiction to grant leave to the Director to appeal against sentence should be exercised only in the rare and exceptional case and that the issue of whether leave should be granted must be considered as a "distinct matter". The Court said that in determining whether the Director had discharged the onus in that regard, the Court should be guided by the remarks of Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 310:

"an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons".

The majority added in respect of that passage:

"The reference to "matter of principle" in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting "error in point of principle".

In R v Barbara (unreported Judgment No. 60638 of the New South Wales Court of Criminal Appeal delivered 24 February 1997), Hunt CJ at CL with whom the other members of the Court agreed, pointed out that the passage I have quoted from the judgment in Everett was not limited to laying down some new point of principle. His Honour said:

"It is usually overlooked by respondents that the High Court has at the same time also clearly indicated that sentences which are so inadequate as to indicate error or departure from principle, and sentences which depart from accepted sentencing standards, constitute error in point of principle which the Crown is entitled to have this Court correct."

Bearing in mind those principles and the remarks of King CJ in R v Osenkowski (1982) 30 SASR 212, I am persuaded that this is an appropriate case in which to grant leave to appeal and to allow the appeal in order to correct a manifestly inadequate sentence.

The appellant's offending was a serious example of armed robbery. The use of a knife held close to the body of the victim is a dangerous and frightening act. Notwithstanding that the crime was not well planned, in my opinion the appropriate starting point is seven years. As to the discount for the plea of guilty, coupled with genuine remorse, in Rooke, Doyle CJ said:

"The Court has generally allowed a significant discount for a plea of guilty, especially if there are indicators of genuine regret and remorse, and of an intention to change. Discounts in the range of fifteen per cent to twenty-five per cent are quite common in such cases, and in exceptional cases they have been even greater. However, there are also cases in which the discount has been right at the bottom of that range, and, indeed, less than fifteen per cent."

The respondent was apprehended soon after committing the crime and had little prospect of escaping conviction. However, he pleaded guilty at the earliest opportunity in the Magistrates Court and has demonstrated genuine regret and remorse. He has also embarked successfully upon his rehabilitation with respect to his heroin addiction. In these circumstances, I consider a discount of just over 20 per cent is appropriate. In arriving at the higher end of the range of discount, I have placed particular importance upon the fact that the respondent pleaded guilty at the earliest possible opportunity. Every encouragement should be given to offenders to acknowledge their guilt at the earliest possible time.

The respondent was in custody from 20 July 1999 to 1 September, 1999. After taking that period into account and making full allowance for all the matters of mitigation, and bearing in mind the principle of double jeopardy which is applicable when the appeal court is imposing sentence on a successful Crown appeal, in my opinion the appropriate head sentence is five years.

As to the non-parole period, before the learned sentencing judge and in this Court, counsel for the Director acknowledged that the personal matters to which I have referred provide a sound basis for a shorter than usual non-parole period in order to encourage continued rehabilitation. I agree. In my opinion a non-parole period of three years is appropriate.

The difficult issue of whether the sentence should be suspended remains. This Court is required to exercise its own discretion, but the view of the learned sentencing judge should not be ignored. In addition to the factors of mitigation which led the learned sentencing judge to exercise his discretion to suspend the sentence, it is appropriate to take into account that the respondent has been at large in the community progressing with his rehabilitation since being released on bail on 1 September 1999. It is now a little over three months since the sentence was suspended and the respondent has been receiving the assistance of his probation officer during that period. The principle of double jeopardy is also applicable.

In considering whether it is appropriate to suspend the sentence, the Court must balance a number of interests to which I have referred against the possibility that suspending the sentence would send a wrong signal to persons who are tempted to commit serious crimes and, in particular, crimes of armed robbery (cf R v Taddeo [1993] SASC 4059; (1993) 67 A Crim R 338 at 340). Suspension of a sentence of imprisonment imposed for armed robbery is justified only in exceptional circumstances. Ordinarily, factors such as a guilty plea, contrition, youth, addiction to drugs and prospects of rehabilitation, even in combination, would not amount to exceptional circumstances justifying suspension of the sentence. Those factors are, unfortunately, commonly present in matters of armed robbery that come before the criminal courts. In particular, crimes of armed robbery 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. I agree with the remarks of Doyle CJ, with whom Duggan and Wicks JJ agreed, in R v Nemere [1999] SASC 228:

"[25] It remains only to repeat that armed robbery of the type attempted by persons addicted to drugs is a common offence. The prevalence of such offending is an illustration of the tragic effects of drug addiction. [26] Addiction is a complex social problem. However, the Courts must remain firm in trying to deter people minded to offend in this way. The Courts cannot accept addiction as a basis for imposing a lenient punishment for such serious offences as armed robbery, and attempted armed robbery."

In R v Tran [1999] NSW CCA 109, Wood CJ at CL delivered a judgment with which the other four judges sitting as the Court of Criminal Appeal agreed. The respondent had pleaded guilty to one count of armed robbery and asked that two offences of a different nature to be taken into account. The Crown appealed against an order by the learned sentencing judge in which he deferred passing sentence upon condition that the respondent enter into a bond which included a condition that he appear for sentence if called upon by reason of any breach of the bond occurring during the period of the bond. Wood CJ at CL observed that the learned sentencing judge had "correctly directed himself that absent exceptional circumstances, the seriousness of the offence would have called for a full time custodial sentence." His Honour then addressed the circumstances relied upon by the learned sentencing judge in deciding to defer passing sentence, including the youth of the respondent and the prospects of rehabilitation. His Honour referred to the "well known principle that when courts are required to sentence a young offender, considerations of punishment and general deterrence should in general be regarded as subordinate to the need to foster the offender's rehabilitation." His Honour added, however, a qualification:

"10. What his Honour [the learned sentencing judge] did not mention, and appears to have overlooked, however, was the qualification to that principle concerning young persons where they conduct themselves in a way that an adult does, and commit a crime that involves violence or is one of considerable gravity. In such a case it is the function of the Court to protect the community, and to appropriately give effect to the retributive and deterrent elements of sentencing:"

I agree with his Honour's remarks. I also agree with the following passage from his Honour's judgment in which his Honour addresses both the question of youth and rehabilitation:

"18 The youth of an armed robbery offender is not of itself sufficient to constitute an exceptional circumstance requiring departure from a full time custodial sentence. Nor necessarily is the statement of a desire of a drug user to attempt rehabilitation, or even the demonstration of an effort to do so. Hunt J (as he then was) observed in Thompson (Court of Criminal Appeal New South Wales 4 April 1991 unreported) in a passage cited by Sully J in Fabian 64 A Crim R 365 at 377: "Uninstructed by authority, I would have said that the achievement of rehabilitation, however exceptional that fact may be, would not without more amount to an exceptional circumstance warranting other than a custodial order. Where, for example, there is medical evidence that there is a serious risk that the rehabilitation so far achieved would be destroyed by a custodial sentence, that additional fact could in the particular case constitute that rehabilitation an exceptional circumstance. Everything will depend upon the particular case involved." Sully J added, at 378: "In general terms, the principle as Hunt J expresses it, must have of its nature a very limited applicability. The principle contemplates that there will be hard and credible evidence of: 1) real rather than feigned rehabilitation; and 2) 'serious risk' to that rehabilitation; and 3) something which provides a logical link between the demonstrated progress of real rehabilitation and the suggested 'serious risk'." 19 The evidence before his Honour in the present case did not take it into the category where a custodial sentence posed a serious risk to the rehabilitation of the respondent. 20 In Eastway (Court of Criminal Appeal New South Wales 19 May 1992 unreported) Hunt CJ at CL made reference to the category of case where rehabilitation was not merely under way but complete to the extent that the offender is successfully cured. As his Honour observed, rehabilitation of a unique and special nature should attract mercy rather than adherence to rigid standards of punishment. I agree with that approach, but again the present case did not reach this status."

Wood CJ at CL went on to consider evidence concerning the respondent's rehabilitation since being sentenced. His Honour did so on the basis that, having reached the view that the Crown appeal should be allowed and the respondent re-sentenced, the Court was permitted to have regard to the evidence tendered concerning the respondent's progress and conduct after the imposition of the sentence. In my opinion, this Court should follow the same procedure where a Crown appeal is allowed. It is of particular importance in this matter because, as previously mentioned, the respondent has been progressing with his rehabilitation in the community since being released on bail on 1 September 1999.

The respondent is employed and has continued successfully with his rehabilitation. In a report prepared for this court dated 25 February, 2000 the respondent's probation officers reported favourably as to the respondent's behaviour and acceptance of supervision. In their view requiring the respondent to serve a sentence would impact in a negative manner upon both the respondent's problems and their long-term solution. They observe that the benefit to the community of allowing the suspension to continue should not be underestimated.

In my opinion suspension of the sentence was not justified at the time of sentencing. Notwithstanding the matters of mitigation to which I have referred, including the progress of the respondent's rehabilitation, the necessary exceptional circumstances did not exist. However, not without considerable hesitation I have reached the view that the interests of the community would best be served at this time by not requiring the respondent to serve the sentence. The success of the respondent's rehabilitation would be jeopardised by incarceration and he would lose his employment. In addition, the principle of double jeopardy militates against requiring the respondent to serve the sentence. The issue is finely balanced, but in my opinion the interests of justice favour suspension of the sentence.

For these reasons I would grant leave to appeal and allow the appeal. The sentence should be set aside. I would impose a sentence of five years imprisonment and fix a non-parole period of three years. The sentence should be suspended upon the respondent entering into a bond containing the conditions imposed by the learned sentencing judge and an additional condition that the respondent obey the reasonable directions of his community corrections officer as to the provision of urine samples for the purposes of testing for the presence of drugs.

PRIOR J. The orders of the Court are, therefore:

1. Leave to appeal 2. Appeal allowed. 3. Sentence imposed set aside. 4. Impose a sentence of five years imprisonment with a non-parole period of three years suspended upon the respondent entering into a bond in the sum of $1 000 to be of good behaviour for a period of three years, to be under the supervision of a community directions officer, obeying the lawful directions given to him by that officer both as to place of residence, treatment required for drug addiction and besides that, the respondent is to provide urine samples for the testing of any presence of drugs upon request by the community corrections officer. A further condition with respect to reporting will be contained in the bond.