R v Place [2002] SASC 101;

R v Place [2002] SASC 101; - SASC 2002 case summary — Zoe

[9]

The sentencing judge then referred to an authority which indicated that the reduction for the plea and co-operation should be in the order of 40 per cent. He said that further credit should be given for the appellant's involvement in the Drug Court programme. Allowing for all of those matters, his Honour arrived at a head sentence of 12 years, from which he deducted a period of six months as a reflection of time already spent in custody and the deprivations of home detention bail. By this process his Honour arrived at the head sentence of 11 years and six months imprisonment.
The appellant's complaints about the approach of the sentencing judge may be summarised as follows. First, that his Honour erred in applying a "tariff" for armed robbery based purely on the objective circumstances of the crimes without regard to the individual circumstances of both the crimes and the appellant. Associated with this complaint was the suggestion that the South Australian Court of Criminal Appeal has erred in its approach to fixing a "tariff" in respect of the crime of armed robbery. Secondly, that his Honour erred in considering the principle of totality after identifying a starting point of 32 years imprisonment based on objective considerations. Thirdly, that it was an error of principle to adopt a two-stage process which involved arriving at a starting point based on objective considerations and then making deductions from the starting point to reflect circumstances of mitigation. Finally, that it was an error to identify a specific reduction to reflect co-operation with the authorities, early pleas of guilty and contrition.
Sentence was imposed on 12 September 2001. Three days later the High Court delivered judgment in Wong v The Queen [2001] HCA 64; (2002) 76 ALJR 79. The Court was concerned with a guideline judgment published by the New South Wales Court of Criminal Appeal. Gaudron, Gummow and Hayne JJ delivered a joint judgment in which they held that the guideline judgment went beyond the jurisdiction of the Court of Criminal Appeal. In the course of their remarks they made some observations which form the basis of the appellant's suggestion that the South Australian Court of Criminal Appeal has erred in its approach to fixing a standard of penalty in respect of the crime of armed robbery. In addition, their Honours disapproved of the particular "two stage approach" to sentencing that was under consideration in Wong and expressed the view that the approach was "wrong in principle". Their Honours also appear to have disapproved of the practice of identifying a specific reduction given in respect of a plea of guilty.
In view of the decision in Wong, the issues raised in this appeal require the Court to examine its approach to the fixing of a standard for the crime of armed robbery and to determine whether it is an error for a sentencing judge to identify a specific reduction for a plea of guilty and whether this Court has been in error in encouraging sentencing courts to do so.

[27]

Kirby J confined his conclusion to the opinion that the guidelines formulated by the Court of Criminal Appeal were "incompatible" with the terms of the applicable Federal legislation [149]. However, his Honour specifically agreed with the observations of Gleeson CJ at [5]-[12], which paragraphs encompass those which we have cited concerning the role of the Court of Criminal Appeal.
Callinan J agreed with the Chief Justice that the Court of Criminal Appeal did not apply the guidelines in allowing the Crown appeal. Without deciding the question, his Honour doubted that the guidelines in question were a proper exercise of the judicial power of the Commonwealth because the guidelines appeared to have a "legislative quality" and they spoke "prospectively". His Honour noted that the difference between guideline judgments "and judgments setting forth principles of the type which courts of criminal appeal have delivered for almost a century is more than one of mere nomenclature" [167].
Read literally, the remarks in the joint judgment that "the publication of expected or intended results of future cases is not within the jurisdiction or the powers of the court" and that the Court of Criminal Appeal had "no jurisdiction in respect of sentences passed or to be passed on others" might be taken as meaning that a Court of Criminal Appeal does not have jurisdiction to indicate the standard of penalty to be applied in an ordinary or usual case of armed robbery or any other offence. However, those remarks were made in the context of consideration of a guideline that was intended to have a prescriptive effect on future cases and from which departure would have been regarded by the Court of Criminal Appeal as evidence of an error of principle by the sentencing judge. Such a guideline is to be contrasted with the well accepted role of the Court of Criminal Appeal in establishing and maintaining adequate standards of punishment for crime. This is the role identified by Gleeson CJ in Wong in the passages cited earlier and it is a role that has been approved by the High Court: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295. We do not understand their Honours as intending to deny the existence of that jurisdiction in courts of criminal appeal.
The critical question is whether the jurisdiction to establish and maintain adequate standards of punishment for crime includes the identification of a standard of penalty by indicating a range of sentences applicable in ordinary cases of particular crimes. As Gleeson CJ pointed out in Wong, there are sound reasons why in exercising the jurisdiction appellate courts may find it useful "to indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence" [9].

[46]

As to the offence of armed robbery, the origins of a standard of penalty can be traced from 1979 when the Court of Criminal Appeal delivered a decision in R v Spiero (1979) 22 SASR 543. In 1988, in R v Prendergast (1988) 147 LSJS 486 King CJ, with whom Jacobs and von Doussa JJ agreed, reviewed a number of authorities. His Honour concluded that a pattern had emerged indicating a standard of penalties in the range of eight to 12 years applicable to the "general run of cases". By 1995 when the Court of Criminal Appeal delivered its decision in R v Drumgoon (unreported No. S5382 delivered 13 December 1995), the legislation under which sentence was imposed had changed. Perry J, with whom Cox and Williams JJ agreed, noted that the previous "tariff" for armed robbery was eight to 12 years imprisonment. His Honour said that following the change in the legislation, the "tariff" should be regarded as in "the order of six to eight years". However, his Honour also observed that a "so-called tariff" should not be applied inflexibly and specifically agreed with the observations of Cox J in Hooper which are cited earlier in these reasons. The remarks in Hooper were again approved in R v Lumsden [2000] SASC 49.
In our opinion, the approach taken by this Court to the setting of standards of penalty is sound in principle and forms an important part of the proper role of the Court of Criminal Appeal. We respectfully agree with the observations of Gleeson CJ in Wong in the passage earlier cited. Where this Court has set standards of penalty, it has expressly identified the standards as applying to the ordinary cases and explained the reasons for setting the standards. In each instance, the nature of the "ordinary case" has been identified and guidance given concerning the factors of particular relevance in the exercise of the sentencing discretion for particular offences. This Court has repeatedly made it plain that all relevant factors must be considered and that the guidance given by way of identifying a standard is not to be taken as detracting from the duty of the sentencer to assess the individual circumstances of each case and to impose a sentence appropriate to those individual circumstances. In each instance, when disposing of appeals that involve identifying a standard, this Court has had regard to all relevant factors and did not adopt a mechanical approach or an approach inappropriately fettered by the standard.
Finally, it is appropriate to make the following observations about the terminology that has, on occasions, been used. The word "tariff" is capable of carrying with it the concept of a fixed penalty. That connotation explains why, in numerous appellate decisions, reference is made to a "so-called tariff". In our opinion it would be preferable to avoid using the word "tariff" and to refer to sentencing standards which are intended to apply to ordinary cases and which are given for the guidance of sentencing courts.
Similarly, on occasions, the appellate court has expressed itself in terms that suggest that departure from a sentencing standard is only justified in "exceptional" cases or circumstances. Again, the word "exceptional" has the capacity to mislead. Properly understood in this context it refers only to a case that is not ordinary in the way that the appellate court has identified an ordinary case as involving a certain type of offence committed by a certain type of offender. However, in view of the capacity to mislead, in our view it would be preferable not to suggest that departure from a sentencing standard is only justified if the case or circumstances are "exceptional".

[85]

The approach in Williscroft has been consistently followed in Victoria. In particular, in R v Young [1990] VicRp 84; [1990] VR 951, the Full Court expressly approved Williscroft and disapproved of a two-stage process in which the sentencing judge first determined a sentence proportionate to the crime taking into account only some of the relevant facts and then adjusted the sentence having regard to other considerations including matters personal to the offender. The firm view of the Victorian Court extended in R v Nagy [1992] VicRp 45; [1992] 1 VR 637 to discouraging the identification of a specific allowance for co-operation and assistance by an informer. In a compelling dissent on that aspect, McGarvie J expressed the view that there were strong reasons in public policy for identifying a specific allowance and that it was a matter for the discretion of the sentencing court whether to state the amount of the reduction. After referring to the decision of the Victorian Court of Criminal Appeal in R v Morton [1986] VicRp 82; [1986] VR 863 in which it was held that, generally speaking, while there was nothing to prohibit a court stating the amount of a reduction given in respect of a plea of guilty it was undesirable to do so, McGarvie J noted that such a view has not been taken in all cases in Victoria. His Honour referred in that regard to R v Ienco (unreported, Full Court, 29 March 1990) where, with the concurrence of Crockett and Beach JJ, his Honour identified a specific reduction for a plea of guilty when allowing an appeal and imposing sentence. Similarly, in R v Tan (1995) 78 A Crim R 300, the Victorian Court of Criminal Appeal allowed an appeal against sentence and, in re-sentencing, identified a specific reduction for the appellant's undertaking to co-operate with law enforcement agencies. These authorities demonstrate the existence of a view by some judges in Victoria that, in some circumstances, it is permissible and appropriate for a sentencer to identify a specific reduction for a plea of guilty and co-operation with the authorities.
In R v Thomson (2000) 49 NSWLR 383 Spigelman CJ, with whom four other judges agreed, reviewed the practices and authorities in all States with respect to the approach of sentencing courts to reductions for pleas of guilty. As to the position in New South Wales, his Honour referred to a number of decisions of Hunt J in which his Honour, with the concurrence of other judges, expressed the view that while there is nothing to prohibit a court from stating the amount of a reduction for a plea of guilty, it will generally be impossible or misleading to do so. Hunt J said it would be unwise because it would only multiply the possibility of error and unnecessary because it would inevitably increase the incidence of arguable appeal points. It is noteworthy, however, that in one of these authorities Hunt J expressly excluded from his remarks the identification of reductions for assistance to the authorities. His Honour said that reductions for assistance, where they can be identified, may fall within a special category: R v Beavan (unreported Court of Criminal Appeal 22 August 1991).
After reviewing the authorities in other States, Spigelman CJ made the following observations (pp 396-397):

[97]

During the submissions in this Court, senior counsel for the appellant acknowledged the advantages of identifying a specific reduction for a plea of guilty. Ultimately, he conceded that identifying a reduction for the practical value of a plea in saving costs would not infringe any sentencing principle or lead to any distortion of the sentencing process. However, he submitted that in determining the extent of the reduction it is inappropriate to take into account the subjective consideration of contrition. As mentioned, this appears to be the view favoured by Slicer J in Pavlic and by Malcolm CJ in Verschuren.
In his propositions set out in Shannon, King CJ said that a plea of guilty may be taken into account in mitigation where it results from contrition or from a willingness to cooperate in the administration of justice by saving the expense and inconvenience of a trial. As a consequence, in determining the extent of a reduction, for some years it has been the practice in South Australia to take into account the timing of the plea and whether or not it is accompanied by contrition and co-operation with the authorities. A plea accompanied by active assistance to the authorities is recognised as attracting the higher range of reduction. A combination of factors including contrition and co-operation was taken into account when this Court determined the extent of a reduction for a plea in R v Wiskich (2000) 207 LSJS 431 at 465. Prior J, with whom Besanko J agreed, noted that reliance on a combination of factors when referring to Wiskich in R v Powell [2001] SASC 450 at [23].
When such a combination of factors exists, it is not the practice to attempt to identify a specific reduction for each of the factors that accompanies the plea. For example, there is no attempt to isolate a reduction for the fact of the plea and a separate reduction for assistance to authorities. It was this type of combination of factors to which Gleeson CJ addressed his remarks in R v Gallagher (1991) 23 NSWLR 220. In Gallagher, the New South Wales Court of Criminal Appeal was concerned with the issue of reduction for assistance to authorities. Gleeson CJ, with whom Meagher JA agreed, concluded that a sentencing judge was entitled, but not obliged, to identify a reduction given for assistance to authorities, provided it was possible and appropriate to do so. In that case the appellant had also pleaded guilty and demonstrated contrition. The Chief Justice observed that those subjective matters were not entirely separate from the matter of the appellant's assistance to authorities. It was in that context that his Honour made the following remarks which were cited in the joint judgment in Wong at [76]:

[99]

We respectfully agree with the observations of Gleeson CJ in Gallagher. As we have explained, when determining the extent of a reduction for a plea of guilty that is accompanied by one or more of the particular considerations to which Gleeson CJ referred, it is not the practice in South Australia to attempt to separate out one or more of such considerations.
Significantly, the fact that contrition and the other factors we have identified are taken into account in determining a specific reduction for a plea does not mean that those factors are ignored in other respects. For example, the existence of one or more of those factors is almost invariably relevant to an assessment of the need for individual deterrence and the prospects of rehabilitation. They may be relevant to an offender's moral culpability and the question of general deterrence. There is no suggestion that the current practice in South Australia results in those factors being ignored for such purposes. In this way, an offender receives the greatest possible benefit. In our view, it cannot be said that the use of those factors in these ways offends any principle of sentencing or distorts the sentencing process. We are unable to discern how the current practice increases the prospects of error.
Submissions were heard in this appeal on 12 February 2002. Two days later the High Court delivered judgment in Cameron v The Queen [2002] HCA 6. In Cameron, the appellant had pleaded guilty to a charge of possessing a prohibited drug with intent to sell and supply. As the offence was committed on Commonwealth property, although the laws of Western Australia were to be applied, the sentencing court was exercising Federal jurisdiction. The appellant appealed against the penalty imposed on the basis that, pursuant to the Western Australian Sentencing Act and the provisions related to what is commonly known as the "fast-track system", he was entitled to a greater reduction in the penalty than was given by the sentencing judge in respect of his plea of guilty.
Gaudron, Gummow and Callinan JJ delivered a joint judgment. Their Honours referred to the observations in Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656 at 663 that a plea of guilty is ordinarily a matter taken into account in mitigation because it is usually evidence of some remorse and, secondly, "on the pragmatic ground that the community is spared the expense of a contested trial." Their Honours observed that remorse is not necessarily the only subjective matter revealed by a plea of guilty in that the plea "may also indicate acceptance of responsibility and a willingness to facilitate the course of justice [11]". However, in respect of the proposition that weight in mitigation is given purely on the "pragmatic ground", their Honours said [12]-[14]:

[132]

The Sentencing Act does not refer to "mitigating" or "aggravating" factors. It simply lists a number of factors, many of which could, in differing circumstances, amount to either mitigating or aggravating factors. In particular, the Sentencing Act does not have a section equivalent to the Western Australian provision that directs the court not to regard a plea of not guilty as an aggravating circumstance. However, it is a fundamental common law principle that an accused must not be penalised for pleading not guilty and putting the Crown to proof. That fundamental principle has not been altered by the Sentencing Act.
Section 10 requires the court to have regard to the fact that an accused has pleaded guilty. No guidance is given as to how that fact is to be taken into account. It has been accepted on more than one occasion that s 10 reflects the common law and this court is entitled to assume that, when the Sentencing Act was passed, the legislature was aware of the approach of the courts to the relevance of a plea of guilty as identified by King CJ in Shannon.
The issue before the High Court in Cameron was whether the Court of Criminal Appeal erred in its approach to the timing of the appellant's plea of guilty. The majority concluded that the Court had erred. Neither party took a point based on discrimination and the question of discrimination was not relevant to the issue to be determined by the High Court. Three judges in the joint judgment expressed the view that the rationale for taking a plea of guilty into account independently of any question of remorse and acceptance of responsibility must be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing. McHugh J did not refer to that suggested rationale. Kirby J identified a number of features of public interest which he described as "purely utilitarian". His Honour did not adopt the rationale identified in the joint judgment. The approach of Kirby J supports that of King CJ in Shannon.
The issue of the rationale was not the subject of submissions. We tend to favour the views expressed by Kirby J and King CJ that, in the absence of subjective criteria such as contrition, a sufficient rationale is found in the public interest based upon "purely utilitarian" considerations. The considerations to which Kirby J and King CJ referred are compelling. However, it is not necessary to decide this issue.
Before leaving Cameron, it is appropriate to note the significance of the decision in the context of whether it is permissible to identify a specific reduction for a plea of guilty. In observations with which we respectfully agree, Kirby J repeated his views about the need for transparency and for identification of the extent of a reduction for a plea of guilty. In addition, although s 8 of the Western Australian Sentencing Act does not require a sentencer to state the extent of a reduction for a plea of guilty, it is the practice in Western Australia to identify the specific reduction and the sentencing judge in Cameron followed that practice. There is no suggestion in the joint judgment or the judgment of McHugh J that the practice or the approach of the sentencing judge was wrong in principle or undesirable.

[133]

The "mathematical" two-stage approach with which the High Court was concerned in Wong is not the process which has been approved and adopted in South Australia with respect to reductions for pleas of guilty. The views expressed in the joint judgment concerning the two-stage approach, and in particular the example given with respect to identifying a reduction for a plea of guilty, were not the views of a majority. In our opinion this Court is not constrained by authority to hold that the existing practice in this State is wrong. In our view, the current practice is consistent with the requirements of s 10 of the Sentencing Act and conforms with sentencing principles. The failure to identify a specific reduction is not an error of principle nor, in itself, is it a ground for interference with a sentence. Significantly, the South Australian practice does not detract from the requirement that sentencing courts take into account all relevant matters related to the offence and the offender. The practice does not give rise to any distortion of the sentencing process or invite error. It does not interfere with the important consideration of proportionality. The fears expressed by McHugh J in AB and in the joint judgment in Wong have not come to fruition in the 10 years that the practice has existed in this State.
The authorities to which we have referred have identified compelling reasons in public policy why the extent of a reduction of sentence in recognition of a plea of guilty should be identified. Experience in this State and in New South Wales has demonstrated that the public policy objectives are not achieved unless the specific reduction is identified. Offenders and their legal advisers are able to identify in advance and with some confidence an approximate range of reduction that is likely to accompany a plea of guilty. After sentence has been imposed an offender is not left in any doubt as to whether benefit was given for a plea of guilty as full knowledge of the extent of the reduction and the reasons for it are given. The community and the appellate court are similarly well informed. The initial scepticism that accompanied the general recognition that a plea of guilty entitled an offender to a degree of mitigation has disappeared.
The system is fair and practical. It has worked well in practice for a number of years. In our opinion, it would be a retrograde step to discourage sentencers from continuing with the current practice. It would be very difficult to explain to offenders and the community why the court has departed from its present practice. An explanation for the departure based on describing the sentencing process as an instinctive synthesis would be greeted with scepticism.
For these reasons, in our opinion the current practice should continue and this Court should continue to encourage sentencing courts to identify the specific reduction given in respect of a plea of guilty. In determining the extent of the reduction, the current practice of taking into account the timing of the plea, contrition, co-operation with and assistance to the authorities should continue. We emphasise that in taking into account any subjective considerations, sentencing courts should not ignore those subjective considerations to the extent that they are relevant to other aspects of the sentencing task.

[141]

The crimes of armed robbery occurred between 11 July 2000 and 27 July 2000. The offences of illegal use and threatening with a firearm were also committed in July 2000 and related to the forcible theft of two motor vehicles which were subsequently used in the robbery. The four offences of failing to comply with a bail agreement occurred in mid 2001 and related to breaches of home detention bail granted in respect of the armed robberies.
The appellant was born on 30 May 1960. He was raised in an affluent family and, although there were some unfortunate aspects to his family life, there is nothing in that part of the appellant's background which could reasonably excite the sympathy of a sentencing court. The appellant began consuming alcohol as a teenager, but eventually ceased drinking alcohol in 1997 when diagnosed with Hepatitis C. Amphetamine use began at about the age of 15 years and, unfortunately, the appellant began to use heroin at the age of 17 years. He was a regular user of heroin for about 15 years until he was 37 years of age. Notwithstanding his addiction to heroin, the appellant was able to maintain a good working record in the engineering and construction industry. Prior to committing the offences for which he was to be sentenced, apart from breaches of the road traffic laws, the appellant's only transgressions were three minor offences involving possession of marijuana committed between 1982 and 1984.
In 1980 the appellant commenced a de facto relationship with a woman who had a long history of heroin addiction. Marriage followed in 1992 and a son, who is now 15 years of age, was born of the relationship. The appellant and his wife separated in 1998. Their son has lived with relatives for some time. Following the separation the appellant experienced various emotional reactions consisting of feelings of depression, anger, self-loathing and desperation. In that frame of mind the appellant began using amphetamines heavily and needed money to finance his habit. He was feeling desperate and dejected about having gone from a "full life to having nothing". It was against that background that the crimes of armed robbery were committed.
The offences all occurred over a period of less than three weeks in July 2000. The sentencing judge summarised the course of the appellant's criminal conduct in the following terms:

[154]

This Court has said on a number of occasions that armed robbery on premises such as banks, service stations, pharmacies, delicatessens and retail stores where weapons or objects that appear to be weapons are used to threaten the immediate victims are prevalent crimes committed against vulnerable victims and are crimes in respect of which general deterrence and the protection of the public are of particular importance. This Court has emphasised that such 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. For these underlying reasons, this Court has said that, generally speaking, the standard of penalty appropriate for those types of armed robberies committed by those types of offenders is in the order of six to eight years imprisonment. In our view, the sentencing judge was doing no more than having regard to the standard of penalty that has been identified by the Court of Criminal Appeal as applicable to the circumstances before him. However, it is clear that his Honour did not apply the standard as if it was a fixed tariff. If he had done so, his starting point would have been 36 years or more. It appears that his Honour used a figure of approximately five years for each of the armed robberies in determining his starting point.
The types of armed robberies to which the standard of six to eight years applies can be described in broad terms only. The range of both personal and objective circumstances associated with crimes of armed robbery is such that it is inappropriate to attempt to be any more precise. It is the circumstances of a particular offence and offender that determine whether the standard is applicable. The importance of carefully assessing those circumstances should not be diminished by the use of labels or by attempting to create categories of offending.
With those observations in mind, it is necessary to refer to the recent decision of this Court in R v Newton [2002] SASC 36. The Court was concerned with an application by the Director of Public Prosecutions for leave to appeal against a sentence of three years and six months imprisonment with a non-parole period of nine months imposed following a plea of guilty to a charge of armed robbery. The victim was a 27-year-old female who had made a withdrawal from an ATM. While she was walking away after making the withdrawal, she was accosted by the offender who asked for a cigarette. When the victim offered the offender a cigarette, the offender demanded money, grabbed the victim by the shoulder and pulled her closer. At that moment the victim felt a prick to the lower right abdomen. The offender had a syringe and said she had just been released from gaol and had AIDS. An amount of eighty dollars was stolen.
In giving reasons for the dismissal of the Director's application Perry J, with whom Wicks J agreed, referred to the standard of six to eight years and emphasised that the standard is not "inflexible". His Honour commented that offences of armed robbery are committed in a wide range of circumstances, not all attracting the same degree of culpability, and made the following observations [46]-[49]:

[159]

Notwithstanding the care with which Perry J explained the circumstances that, in his view, could lead to the description of a particular offence of armed robbery as a "street offence", for the reasons we have given, in our opinion it is undesirable to attempt to attach labels of that type to a particular set of circumstances.
Perry J also suggested that the standard had been formulated by reference to a "category of offence" which he identified as "a bank hold-up or armed robberies committed against business houses which are "vulnerable targets" such as chemist shops or service stations trading late at night ...". A footnote to the passage cited referred to a number of appellate decisions involving armed robberies of those types of premises. In our opinion, however, the authorities to which his Honour referred were not concerned with identifying a standard applicable to a "category of offence", but were indicating that the particular offences fell within the broad description to which we have referred. As we have said, in our view it is inappropriate to attempt to create categories of offending or to regard the standard as applying to a particular "category".
The circumstances of the armed robbery in Newton involved a vulnerable victim who was no less vulnerable than attendants at premises such as pharmacies and service stations. The victim was subjected to a threat with a dangerous weapon. From the perspective of the victim, the use of the syringe involved a threat of violence that was no less dangerous than a threat with a knife. General deterrence and the need to protect the public were of particular importance. The offender was a heroin addict who was desperate for money in order to purchase heroin. In our opinion, the type of offending in Newton should not be regarded as intrinsically less serious than the broadly described type of offending in respect of which the standard of penalty has been applied by previous decisions of this Court.
In Newton, the Director indicated that he would not be troubled if the Court did not interfere with the sentence under review and emphasised that the principal purpose of the application was to offer the Court an opportunity of laying down or reaffirming principles which might guide sentencing courts when sentencing for the offence of armed robbery. The Court was aware that a five member Court of Criminal Appeal was shortly to hear the matter now under consideration. In those circumstances, the Court refused the Director's application for leave to appeal.
In these reasons, we have confirmed the general principles that are applicable when sentencing for crimes of armed robbery. We have emphasised the need to consider the individual circumstances of the offence and the offender. No submissions were directed to whether the existing standard should be reviewed. The Director did not seek to revisit the suggestion that was made in Newton that sentences imposed in the District Court in recent years demonstrate that the level of sentences imposed for armed robbery has drifted below the standard to which we have referred. In these circumstances, it is sufficient for us to confirm that the standard remains applicable for the types of offences and offenders which we have, in broad terms, described. We would add only that we disagree with the suggestion in Newton that the circumstances to which the standard of six to eight years is appropriate includes the large-scale well planned hold-up of a bank or other business. Much will depend upon the manner in which an armed hold-up is carried out. Generally speaking, however, in our view a well planned and large scale armed hold-up would involve circumstances more serious than those contemplated by the broad description of the type of offences to which the standard of six to eight years applies.
The appellant committed six serious offences of armed robbery. The crimes were, unfortunately, typical of the crimes of armed robbery that are constantly coming before the Criminal Courts in this State. While the appellant did not engage in physical violence or other particularly intimidating type of behaviour that would be regarded as an aggravating circumstance, nevertheless he threatened the victims with what the victims perceived was a small firearm. The victims were attendants in premises that are regularly the subject of this type of armed robbery and they were vulnerable to attack in this manner.
The appellant is a mature person who, notwithstanding an addiction to heroin, has been able to maintain a good working record and previously to have avoided significant offending. We would treat him as a first offender. The appellant committed the crimes against the background of depression and dejection arising from the breakdown of his marriage. Significantly, having been arrested for the sixth robbery, the appellant volunteered his involvement in the previous five robberies. He pleaded guilty at the earliest opportunity and undertook the Drug Court programme. The sentencing judge formed the view that it is unlikely that the appellant will re-offend and we see no reason to disagree with his Honour's assessment.
In our opinion this Court should exercise the power contained in s 18A of the Sentencing Act to fix a single penalty in respect of all offending. However, in order to arrive at that single penalty, it is appropriate to have regard to the individual sentences that would have been fixed if the power in s 18A did not exist. Ultimately, the question of totality must be addressed. In order to reach the point of considering totality, the preferred approach is to determine the appropriate sentences for the individual offences and to decide whether, totality aside, the circumstances would ordinarily require those sentences to be concurrent or cumulative. In the absence of s 18A, after taking into account totality and determining the appropriate total period to be served, that period could be achieved by making the sentences wholly or partially concurrent: Pearce v The Queen (1998) 194 CLR 610; Director of Public Prosecutions v Grabovac [1998] 1 VR 664 at 676-681.
Generally speaking, where a number of offences are committed over a period of time, there is justification for imposing greater penalties for the later offences. However, in the particular circumstances of this matter, we would fix the same penalty for each offence of armed robbery.
Bearing in mind the criminality of the conduct involved in each offence and the matters of mitigation, but before allowing for the plea of guilty coupled with contrition and co-operation, in our opinion a sentence of five years and six months would be appropriate for each crime. By reason of the appellant having volunteered his guilt, contrition and the plea of guilty at the earliest opportunity, we would reduce that sentence to three years and 10 months.
Although the offences were committed over a relatively short period of time, they were separate incursions into crime. Generally speaking, therefore, accumulation of the sentences would be appropriate. By this process a total of 23 years is reached. However, considerations of totality would lead us to adjust the period downward. In making an adjustment by reason of totality, regard should be had to the other offending to which the appellant pleaded guilty and which he asked be taken into account. In our view, a single sentence of 12 years would be a moderate sentence. We see no reason to disagree with the further deduction of six months given by the sentencing judge to reflect the time spent in custody and on home detention bail.
As to the non-parole period, in our opinion the combination of the circumstances in which the appellant came to commit the robberies and the matters of mitigation to which we have referred justifies a shorter than usual non-parole period. Of particular importance is the fact that the appellant volunteered his involvement in five of the robberies. The contrition, plea of guilty at the earliest opportunity and involvement in the Drug Court programme are also of significance. There is every reason to agree with the assessment of the sentencing judge that it is unlikely that the appellant will re-offend.
It is in the interests of the community that the appellant, after serving a reasonable term of imprisonment, be given the opportunity of a lengthy period on parole to ensure the completion of his rehabilitation and his return to the community as a useful citizen. We would fix a non-parole period of six years.
For these reasons we would allow the appeal and set aside the orders of the sentencing judge. We would exercise the power contained in s 18A of the Sentencing Act to impose a single penalty in respect of all offences. We would impose a head sentence of 11 years and six months and fix a non-parole period of six years, both commencing on 12 September 2001.
GRAY J I agree with the reasons of Doyle CJ, Prior, Lander and Martin JJ. I agree that the appeal should be allowed. I agree with the sentence which they have proposed.

At a glance

Court

Decision date

Before

Source

Judgment (159 paragraphs)

R v Place [2002] SASC 101; (2002) 81 SASCR 395 (26 March 2002)

Parties

Cases Cited (26)