Supreme Court of SA|2000-06-27|Before: Gray JJ, Duggan J, Mullighan J

R v WALL & RICHARDS No. SCCRM-00-59, SCCRM-00-72 [2000] SASC 177 (27 June 2000)

Criminal Law (Sentencing) Act SA 1988, referred to.
R v Bondareff, Usachov & McCabe (1999) SASC 316;
R v Spiero (1979) 22 SASR 543;
R v Brett (1987) 140 LSJS 343;
Director of Public Prosecutions (SA) v Fermaner [1994] SASC 4468; (1994) 61 SASR 447;
R v Hooper (1994-1995) 64 SASR 480;
AB v The Queen [1999] HCA 46; (1999) 73 ALJR 1385;
R v Shannon (1979) 21 SASR 442;
R v Morton [1986] VicRp 82; [1986] VR 863;
R v Dowie [1989] TASSC 44; (1989) 42 A Crim R 234;
R v Slater (1984) 36 SASR 524;
R v Smith Judgment No. S3178 10 December 1991;
R v Sutherland Judgment No S3705 16 November 1992;
R v Charnley (1994) 178 LSJS 102;
R v Nixon (1992-1993) 66 A Crim R 83;
R v Harradine (1992) 164 LSJS 382;
R v Hunter [2000] SASC 137;
R v Winchester (1991-1992) 58 A Crim R 345;
R v O'Brien (1991) 55 A Crim R 411;
R v Harmon (1987-1988) 35 A Crim R 447;
R v Holder; R v Johnston (1983) 2 NSWLR 245;
R v Nagy [1992] VicRp 45; (1991) 57 A Crim R 64;
R v Barber (1976) 14 SASR 388;
R v Golding (1980) 24 SASR 161;
R v Harris [1992] SASC 3624; (1992-1993) 59 SASR 300;
R v J [1992] SASC 3639; (1992-1993) 59 SASR 145, considered.

Appellants NIGEL JOHN WALL AND JEREMY PAUL RICHARDS:

Counsel: MS P KELLY - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS (SA)

Judgment No. [2000] SASC 177

On Appeal from DISTRICT COURT (HIS HONOUR JUDGE ALLAN)

(Court of Criminal Appeal: Duggan, Mullighan and Gray JJ)

Court of Criminal Appeal: Duggan, Mullighan, Gray JJ

DUGGAN J. In my view the appeals should be dismissed for the reasons given by Gray J.

MULLIGHAN J I agree that the appeals should be dismissed for the reasons given by Gray J.

GRAY J. The appellants Richards and Wall pleaded guilty to armed robbery and were each sentenced to imprisonment for a period of six years with a non-parole period of three years. Both have appealed against the sentences imposed.

The common issue raised by both appeals was that the sentences imposed were manifestly excessive.

Counsel for the appellants put a joint submission and did not seek to differentiate between them. Counsel for the DPP did not suggest the appellants should be dealt with other than on a common basis.

Shortly after midnight on 24 May 1999 Wall and Richards, with a co-offender Mortimer, went to a house in Ardrossan and entered by the back door. Once in the premises they sought out a bedroom in which the occupant, Mrs Hicks, was asleep. She awoke being aware of gloved hands over her face holding her head down onto the pillow. Wall held Mrs Hicks down and Richards proceeded to apply tape across her eyes. Mrs Hicks called for help and was struck in the face about the left eye by a hard object. She was then warned that if she screamed or yelled she would be shot. She was hit several further times about the head. She complained that she couldn't breathe when a gag was being applied to her mouth and they desisted. Wall tied her hands in front of her with tape around her wrists. At the time she was naked. Clothing was provided to cover her. By this time the tape over her eyes had slipped and she had limited vision. She was aware of three male intruders and that they were armed. Mortimer was doing most of the talking and demanded money. She told him that there was a purse in a dresser drawer where there was about $400. Mortimer then demanded the keys to the hotel and she told him where they were. Mortimer forced her to the dining-room, took a small wallet and a set of keys.

She was then forced out of the house to her nearby hotel. Mortimer held the back of her neck and one of the others held her arm. She was hit again whilst being taken to the hotel and felt and saw a gun barrel pressed against her left arm above the elbow. The pressure was sufficient to break her skin. She also observed a wooden club being carried. The hotel was then ransacked, money was taken from the safe and poker machines, cigarettes taken from a shelf and liquor from behind the bar. During this time Mrs Hicks was being restrained. She was then taped to a pillar in a seated position. Wall, Richards and Mortimer then left with Wall driving in the direction of Adelaide. They encountered a police road block at Port Wakefield. They ignored it and continued at high speed. They were chased by a police vehicle with their speed at times exceeding 190 kilometres per hour. After passing through the police block, Mortimer threw items taken from the hotel, and items of clothing, from the car.

At some point, Mortimer demanded to be let out, the car stopped and he disappeared. The appellants proceeded to drive for a short distance before the car became bogged. They then left the car, eventually hailed a taxi and some time later returned to their homes. They were arrested later the same day. Both made full confessions although Richards at first denied involvement. Mortimer was apprehended some considerable time later.

Both appellants admitted that the crime was planned for more than a week. Wall and Richards expected to receive an equal share of the proceeds. Mortimer, who is in his forties, is said to have exercised influence over the appellants and had a principal part to play in the events. It was he who was aware of the detailed circumstances at Ardrossan. Mortimer had worked at the hotel and had befriended the Hicks family. He knew of the residence of Mrs Hicks, the general layout and the likely location of monies. The gun involved, a slug gun, was owned by Wall and the wooden clubs were provided by Mortimer. Wall's car was used. Balaklavas had been purchased specifically for use in the crime. Both appellants were active participants in the carrying out of the crime. A substantial amount of money, approximately $15,000.00, was taken, as well as goods.

The learned sentencing judge had the benefit of a Victim Impact Statement from Mrs Hicks. The crime has had a significant effect on Mrs Hicks. She has great difficulty in sleeping, is apprehensive and fearful. She has lost a significant amount of independence. She suffered minor physical injury.

Armed robbery is undoubtedly a serious crime. This particular offence was committed in circumstances of aggravation. It was, as I have observed, planned well in advance and executed at premises intimately known to Mortimer. Weapons were selected, disguises were obtained and other aids for the crime procured. It was well known to Wall and Richards that the plan involved an attack on a woman alone at night in her own home. She was dealt with in a deliberately terrifying way, she was bound when naked, abducted from her home and forced to unlock the hotel and de-activate the alarm system. In the process she was hit about the face on a number of occasions and was threatened with a gun and clubs all with a view to inculcating terror and subservience.

Before the learned sentencing Judge it was conceded to be in the worst category of armed robberies. This Court has made it plain that persons who engage in armed robbery can expect a long sentence of imprisonment. There is little scope for leniency even when mitigating factors are present[1]

13 The appellants were both aged 20. They were treated as first offenders. Their earlier records were for minor offences. Neither appellant could offer any real explanation for their involvement other than suggesting that they were under the influence of Mortimer. It was acknowledged that this circumstance could not excuse their conduct, although it might provide some explanation.

14 The learned Sentencing Judge correctly took a very serious view of the offence. Undoubtedly this was an offence that outraged the community, as it seriously undermined the essential security which any person is entitled to feel in their own home.

15 Important considerations to the issue of sentencing are the pleas of guilty and the offers of co-operation and assistance to the police.

16 The learned sentencing Judge did not indicate what reduction he made on account of the pleas of guilty and co-operation with the police. He simply indicated that the took both matters into account. Counsel for the appellants submitted that in the circumstances, His Honour must have had in mind a reduction of something approaching 50 per cent and accordingly the starting point for sentencing was of the order of 10-12 years Counsel submitted that this was too high a starting point.

17 As a starting point, a sentence 10-12 years is undoubtedly higher than the tariff which the appellants submitted was 6-8 years. This case is not an appropriate case for the application of any tariff, because of the aggravating factors. As Cox J observed in R v Hooper[2]:-

" 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 upward 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 R v King (1988) 145 LSJS 278 at 280; R v Prendergast (1988) 147 LSJS 486 at 487-488; R v Nixon (1993) 66 A Crim R 83 at 88-89. 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."

Having regard to the seriousness of this offence and in particular its planning, the terrifying ordeal that Mrs Hicks was subjected to, and the use of a gun and clubs, I consider that a starting point above the suggested tariff was well warranted. In my view, it cannot be said that, as a starting point, the range of 10-12 years for this offence was manifestly excessive.

The appellants' counsel further submitted that a substantial reduction for the pleas of guilty and the offer of assistance to and cooperation with the authorities was appropriate. I agree. He submitted that a discount of 50 per cent would be appropriate having regard to both the pleas of guilty and the information and cooperation provided.

The learned sentencing Judge fixed prison terms of six years. He did not disclose his starting point or the extent of reductions for the pleas of guilty or the cooperation provided. He did not refer to the provision of information that assisted in the identification of Mortimer.

A starting point of 10-12 years with a total discount of 40-50 per cent would be a reasonable exercise of discretion. The six year terms imposed are within this range.

His Honour was undoubtedly lenient in fixing non-parole periods of three years. There were adequate reasons to justify that leniency as His Honour was dealing with offenders aged 20 whose only previous convictions were for minor offences and who felt genuine remorse for what they had done.

The issue of reduction in sentences for pleas of guilty and assistance to, and cooperation with the police are important matters. In his sentencing remarks the learned Sentencing Judge said:-

" I take into account your plea of guilty. I accept that you are full of remorse for what you have done. You are prepared to give evidence against the other man involved in this crime and I take that into account."

From an early time the appellants indicated that they would plead guilty. Further, when first questioned they provided information about the identity and circumstances of Mortimer. That information was probably of substantial assistance to the police as Mrs Hicks had been unable to identify Mortimer. Further, the appellants promptly indicated and then maintained that they would give evidence to assist in the conviction of Mortimer. To this end they provided and signed witness depositions. However, there was a paucity of information put to the learned sentencing Judge.

Their co-operation with the police went both to identify the co-offender and when charged, the establishment of his guilt. As a consequence, it was put by the appellants, and accepted by the DPP, that they had acquired the status of informers and so could expect to be treated more harshly in prison than otherwise. Wall and his family have been harassed as a result of him having been regarded as an informer. In custody the appellants have been segregated from other prisoners. Again, the information placed before the learned sentencing Judge was limited.

It is of the utmost importance that adequate factual material be provided to a sentencing judge on these topics.

As I have already observed, the learned sentencing Judge failed to indicate the extent of the discount in respect of either the pleas of guilty or the co-operation with the police. This court has been left to infer what those discounts may have been. His Honour made no observations as to the appellants' initial disclosures of Mortimer's identity and involvement and the part that information played in his apprehension. His Honour made no reference to the problems they would face in gaol as known informers.

The recognition of a need for a reduction in sentence by reason of a plea of guilty is long established[3]

. Considerable debate has taken place as to whether such a reduction is appropriate. The matter was considered by a bench of five in R v Shannon [4]. The court by a majority (4-1) concluded that it was appropriate that there be a reduction. However the members forming the majority differed as to the basis for the reduction.

29 King CJ, with whom Mohr J agreed, took the view that a reduction was justified for two reasons; first that it may evidence genuine remorse and second by reason of matters in the public interest. King CJ observed that the plea may have been intended to save a prosecutrix the ordeal of giving evidence in a sexual case or that the plea may serve and may have been so intended to save the State a lengthy and expensive trial. Under those circumstances although there may be no feeling of genuine remorse, King CJ and Mohr J took the view that there was still an appropriate basis for reduction in sentence.

"The volume of criminal business has placed the court system under stress and has resulted in unfortunate delays in bringing accused persons to trial. Congestion is greatly contributed to by offenders who put forward false stories and make use of legal aid in an effort to escape conviction. The growth in the importance of these factors points, in my opinion, to the desirability of providing some encouragement to guilty persons to admit their guilt."

"If a plea of guilty, as distinct from remorse evidenced by such a plea, cannot be regarded as a factor in mitigation of penalty, there is no incentive, other than the demands of honesty for an offender to admit his guilt, and experience indicates that the demands of honesty have but little influence on many of those who appear in the docks of criminal courts. In most cases, if the offender has nothing to gain by admitting his guilt, he will see no reason for doing so. I am impressed by the strong practical reasons for recognising a willingness to co-operate in the administration of justice by pleading guilty as conduct possessing a degree of merit, quite apart from remorse, which can be taken into account in assessing the sentence."

32 Later authorities have adopted and applied the remarks of King CJ[5] and it has been recognised as the appropriate approach by statute[6].

33 Wells J, with whom Zelling J agreed, was of the view that the matters of public interest carried no weight unless, accompanied by remorse demonstrating a change in the defendant's attitude.

34 The need for the disclosure of the extent of the reduction for a guilty plea has been the subject of considerable judicial attention in South Australia. The Court of Criminal Appeal has been forthright in requiring express statements of the extent of reduction from sentencing judges. In R v Smith[7] King CJ said:-

"The plea of guilty is of particular importance and it has often been stressed that it is necessary not only that judges should make a concrete and substantial allowance for the plea of guilty, but it that (sic) should be apparent to offenders that their plea of guilty has earnt them a substantial discount."

35 In R v Sutherland[8] King CJ further observed:-[9]

" This Court of Criminal Appeal has stressed the importance of the discount for a plea of guilty in the administration of justice. It is intended to encourage guilty persons to admit their guilt, instead of putting the State to the cost and trouble of a criminal trial and thereby contributing to the congestion of the criminal lists. This is an important public policy consideration, and judges are to be encouraged to foster an awareness amongst people charged with criminal offences, and those who advise them, of the advantage to be gained by a guilty person by acknowledging his guilt at the first reasonable opportunity.

General awareness of the advantage to be gained by a plea of guilty would be contributed to by judges indicating clearly, in their sentencing remarks, not only that they have taken the plea of guilty into account, but also the extent to which they have taken it into account.

I think that this court should actively encourage sentencing judges to take that course.

It does not follow, of course, that merely because the learned judge did not indicate the extent to which he took the plea of guilty into account, that the did not give it appropriate weight."

"... I also agree with the learned Chief Justice's remarks about the desirability of acknowledging the extent to which a plea of guilty is taken into account in the sentencing remarks. Hitherto, it has not been a common practice for judges, when sentencing, to indicate the extent to which a plea of guilty has reduced the sentence. However, as the learned Chief Justice has pointed out, in recent times the Court of Criminal Appeal has underlined the desirability of such an explanation being included in the sentencing remarks. An early intimation of a plea of guilty assists the administration of justice in a number of ways, including obviating the need for witnesses to give evidence and, in addition, allowing for a more effective administration of criminal court lists. Identifying the extent to which it has reduced a sentence assists not only in explaining the basis of the particular sentence, but in fostering awareness of the circumstances which will lead to a reduction of sentence in other cases."

36 In R v Charnley,[10] Prior J speaking for the Court, said:-

" It is to be noted that neither Judge indicated what sentence of imprisonment would have been imposed had there not been a plea of guilty. This Court has said on a number of occasions that sentencing Judges should do that. People admitting crimes are to be given some proper discount for a plea of guilty, more so the sooner that it is made. They should be told what it is."

Regard should be further had to R v Nixon[11]; R v Harradine[12]; R v Hunter[13],

However, some judges in other Australian jurisdictions, have been reluctant to disclose the extent of any discount. Examples are R v Winchester[14]

; R v O'Brien[15]; R v Harmon[16]; R v Holder ; R v Johnston[17].

38 In Victoria, the court has gone so far as to hold that it is an error for a judge to specifically state the amount of discount attributed to a particular factor such as co-operation with the authorities, see R v Nagy[18]; R v O'Brien[19].

39 Despite these differing views, the practice of sentencing courts in this State is established and has been the subject of repeated remarks of the Court of Criminal Appeal. This settled practice of identifying the fact and extent of reduction in penalty should be followed.

40 Co-operation and information of the type provided by Wall and Richards have long been recognised as giving rise to substantial reductions or discounts in penalty. This is primarily for reasons of public policy, although it may also reflect remorse.

41 As Bray CJ said in R v Barber[20] at 390:-

"We have, I think, to accept that the courts have acted on the view that it is not expedient that there should be honour amongst thieves and have therefore sometimes rewarded the informer and encouraged other potential informers by an appropriate mitigation of his sentence. In some cases genuine remorse by those who have been used as the tools of organized crime may be manifested by disclosure of the identity of their principals and when that happens I think it deserves generous recognition, particularly when it is only done at the cost of personal danger."

42 In R v Golding[21] Wells J cited the remarks of Bray CJ and in a learned discourse considered the proper sentencing approach to be followed by a Court dealing with an informer. His Honour's remarks have been widely approved.

43 It was recognised in R v Harris[22] that the public policy aspect of the matter is of great importance, as the benefits to the community are substantial. King CJ speaking for the court at 302 said:-

"It is very important as a matter of public policy that substantial allowance he made to an offender who co-operates with the authorities, and in particular where he gives evidence and thereby incurs the odium of fellow prisoners and the dangers and hardships which flow from that course. It is very important, I think also, that the extent of the discount which is given on this account should be made clear by the sentencing judge. This Court of Criminal Appeal has said on earlier occasions in relation to the discount for a plea of guilty, that it not only ought to be given, but that the judge should indicate so far as possible, and wherever possible, the extent of the discount which he is making for the plea of guilty. If the discount given for a plea of guilty is to operate as a real incentive for guilty persons to plea guilty, it is necessary that they, and their advisors, have a clear idea of the sort of discount which will be made on that account. The same considerations apply to co-operation with the authorities by way of giving evidence against co-offenders. Unless it is clear to offenders that they will receive a significant benefit, and the general extent of the benefit which they are likely to receive, then it is not to be expected that the authorities will receive the co-operation which they so often need in order to enforce the law and bring other offenders to justice. I would therefore exhort judges wherever it is practical to do so in this type of case, not only to make a significant and appropriate allowance for the co-operation with the authorities, but to indicate to the prisoner the extent of the allowance which has been made."

44 At or about the same time in the decision of R v J[23] Olsson J speaking for the Court said:

" As was said by this Court in its recent decision in R v Harris (unreported, Court of Criminal Appeal, SA, King CJ, Olsson and Mullighan JJ, 17 September 1992) it is a highly desirable practice for a sentencing judge, in the course of sentencing remarks, to indicate what sentence would have been imposed if a special discount in tariff had not been allowed (and thus the actual extent of the discount awarded) - so that it is thereafter clear as to how an actual sentence has been arrived at. That was not done in this case; and it follows that there is some difficulty in perceiving the precise manner in which the sentence awarded was actually arrived at. In so saying I do not imply any criticism of the learned sentencing judge, because it has not been the general practice in the past, in this Court to make such a dissection. Having regard to what has fallen from the Court of Criminal appeal in Harris (supra), it is to be hoped that the practice may well change in the future."

The Criminal Law (Sentencing) Act 1988 has recognised the relevance of co-operation to the sentencing process by the express provisions of section 10(1)(h).

The same public interest which calls for a substantial reduction in sentence is best served by making public the reasons for and the extent of the reduction. The disclosure of these matters by sentencing judges is of the utmost importance. There may be exceptional cases where the fact of or extent of any discount should be suppressed. However such cases will be rare.

A distinction can and should be drawn between matters going to a judge's general sentencing discretion and matters calling for a particular reduction in the public interest. The former may best be left without explicit disclosure of each component considered and the weight given to it. Reductions in sentence for public interest reasons such as a plea of guilty and cooperation with the police as an informer, raise very different considerations. As has been pointed out, there is a public interest in the disclosure of the fact and extent of the reduction. This is by reason of the benefit to the community. It is only public disclosure that will lead to public awareness. The public interest is best served by disclosure. Non disclosure is a disservice to the public interest.

Sentencing Judges should identify the fact that a reduction is to be made, the reason for it, and the extent of the reduction, unless there is good reason for not doing so.

When a combination of factors each calling for a reduction of sentence in the public interest arise, there is a need for the Court to have regard to the conduct of the prisoner in its totality. Overlap may occur, as cooperation with the Police may carry with it elements of public interest and remorse associated with the plea of guilty. Together they may form a course of conduct calling for a reduction, but not necessarily the mathematical computation of each considered separately. However, it remains important that there be a clear recognition of each factor that gives rise to reduction if the public interest and a clear statement by the sentencing Judge of the overall reduction allowed.

Such a process is well-known to sentencing judges. The application of the principle of totality is an example. The end result must be proportionate.

A substantial reduction was called for in the sentencing of Wall and Richards having regard to their pleas of guilty and their cooperation with the police. The cooperation included the provision of information leading to the apprehension of Mortimer and also their commitment to the giving of evidence to assist in the establishment of his guilt. It is my view that the reduction made, although the precise extent is not disclosed, must have been substantial. I consider that the sentences fixed were proportionate to the crime and that the non-parole period was appropriate if not lenient. I would dismiss both appeals.

1. R v Bondareff, Usachov & McCabe (1999) SASC 316 per Mullighan J at [121]; R v Spiero (1979) 22 SASR 543 at 548-549; R v Brett (1987) 140 LSJS 343 at 345; Director Public Prosecutions (SA) v Fermaner [1994] SASC 4468; (1994) 61 SASR 447.

3. AB v The Queen [1999] HCA 46; (1999) 73 ALJR 1385 is a recent recognition.

5. R v Morton [1986] VicRp 82; [1986] VR 863 at 867; R v Dowie [1989] TASSC 44; (1989) 42 A Crim R 234 at 251; R v Slater (1984) 36 SASR 524 at 526, 535, 541

6. Criminal Law (Sentencing) Act ( SA) 1988 s 10(1)(g)

10.(1994) 178 LSJS 102 at 104

13. [2000] SASC 137 per Doyle CJ at [14]

R v Bondareff, Usachov & McCabe (1999) SASC 316 per Mullighan J at [121]; R v Spiero (1979) 22 SASR 543 at 548-549; R v Brett (1987) 140 LSJS 343 at 345; Director Public Prosecutions (SA) v Fermaner [1994] SASC 4468; (1994) 61 SASR 447.

[3] AB v The Queen [1999] HCA 46; (1999) 73 ALJR 1385 is a recent recognition.

[5] R v Morton [1986] VicRp 82; [1986] VR 863 at 867; R v Dowie [1989] TASSC 44; (1989) 42 A Crim R 234 at 251; R v Slater (1984) 36 SASR 524 at 526, 535, 541

[6] Criminal Law (Sentencing) Act ( SA) 1988 s 10(1)(g)

[13] [2000] SASC 137 per Doyle CJ at [14]

Criminal Law (Sentencing) Act 1988

R v WALL & RICHARDS No. SCCRM-00-59, SCCRM-00-72 [2000] SASC 177

At a glance

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Judgment (112 paragraphs)

R v WALL & RICHARDS No. SCCRM-00-59, SCCRM-00-72 [2000] SASC 177 (27 June 2000)

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Legislation Cited (2)

Cases Cited (9)