THE KING v AARON CARL JENSEN-COULSON [2023] SASCA 76

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE SCHAMMER) DCCRM-22-737 Applicant: THE KING Counsel: MR D PETRACCARO SC WITH MS M ROCCA - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: AARON CARL JENSEN-COULSON Counsel: MR G KATSARAS - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 08/06/2023 File No/s: SCCRM-22-017430 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v JENSEN-COULSON [2023] SASCA 76 Judgment of the Court of Appeal (The Honourable Justice Bleby, the Honourable Justice David and the Honourable Auxiliary Justice Dalton) 13 July 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - CIRCUMSTANCES OF AGGRAVATION Crown application for permission to appeal against sentence. The respondent pleaded guilty to four counts of aggravated robbery, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) and one count of theft, contrary to s 134(1) of the CLCA. The circumstance of aggravation of each count of aggravated robbery was the use of an offensive weapon. The respondent was also to be sentenced for offences of one count of making off without payment, contrary to s 144(1) of the CLCA; one count of drive dangerously to escape police pursuit, contrary to s 19AC(1) of the CLCA; and one count of resist police, contrary to s 6(2) of the Summary Offences Act 1953 (SA). On 13 December 2022, a judge of the District Court sentenced the respondent to a term of imprisonment of six years and three months for the offences of aggravated robbery and driving dangerously to escape police. With respect to the offences of theft, making off without payment and resist police, the judge convicted the respondent but imposed no further penalty. The sentencing judge imposed a non-parole period of four fifths of the head sentence, pursuant to s 54(1)(b) of the Sentencing Act 2017 (SA), being five years’ imprisonment. The head sentence and the non-parole period were backdated to commence on 4 May 2022, the date the respondent was taken into custody. -- 1 of 21 -- The Crown now appeals this sentence on the sole ground of appeal that the sentence is manifestly inadequate. Held (per Bleby and David JJA), refusing permission to appeal: 1. While the sentence was manifestly inadequate, this case is not so rare and exceptional as to warrant a grant of permission to appeal. Held (per Dalton AJA), refusing permission to appeal: 1. The sentence, which will see a 28-year-old man serve at least five years actual imprisonment for this offending, was not manifestly inadequate. Criminal Law Consolidation Act 1935 (SA) ss 19AC(1), 134(1), 137(1), 144(1); Sentencing Act 2017 (SA) s 54(1)(b); Summary Offences Act 1953 (SA) s 6(2), referred to. Barbaro v The Queen (2014) 253 CLR 58; Edmonds (A Pseudonym) v The Queen [2022] SASCA 11; Everett v The Queen (1994) 181 CLR 295; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Malvaso v The Queen (1989) 168 CLR 227; R v Brant [2018] SASCFC 72; R v Butler (a pseudonym) [2022] SASCA 112; R v Buttigieg [2020] SASCFC 38; R v Drewett (1983) 35 SASR 344; R v Everleigh [2003] 1 Qd R 398; R v Free [2020] QCA 58; R v Gannon (2012) 113 SASR 1; R v Harkin [2011] SASCFC 24; R v Harradine & Harradine [2012] SASCFC 103; R v Kelly [2023] SASCA 22; R v McDougall & Collas [2007] 2 Qd R 87; R v McIntosh [2017] SASCFC 87; R v McIntyre (2020) 138 SASR 17; R v Nemer (2003) 87 SASR 168; R v Newton [2002] SASC 36; R v Osenkowski (1982) 30 SASR 212; R v Place (2002) 81 SASR 395; R v Schultz [2010] SASCFC 47; R v Smith [2022] QCA 89; R v Turner [2016] QCA 282; R v Yaroslavceff [2022] SASCA 123; Soun v The Queen; R v Soun [2021] SASCA 119; Trott-Dan v The King [2023] SASCA 2; Wong v The Queen (2001) 207 CLR 584, considered. -- 2 of 21 -- R v JENSEN-COULSON [2023] SASCA 76 Court of Appeal – Criminal: Bleby and David JJA and Dalton AJA 1 BLEBY and DAVID JJA: This is a prosecution application for permission to appeal against sentence. The sole ground of appeal is that the sentence is manifestly inadequate. 2 The respondent pleaded guilty to four counts of aggravated robbery, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) and one count of theft, contrary to s 134(1) of the CLCA. The circumstance of aggravation of each count of aggravated robbery was the use of an offensive weapon, a knife. 3 Counsel for the respondent at sentencing sought to have a lower court file called up. Consequently, the respondent was also to be sentenced for offences of one count of making off without payment, contrary to s 144(1) of the CLCA; one count of drive dangerously to escape police pursuit, contrary to s 19AC(1) of the CLCA; and one count of resist police, contrary to s 6(2) of the Summary Offences Act 1953 (SA). 4 On 13 December 2022, a judge of the District Court sentenced the respondent to a term of imprisonment of six years and three months for the offences of aggravated robbery and driving dangerously to escape police. With respect to the offences of theft, making off without payment and resist police, the judge convicted the respondent but imposed no further penalty. 5 As the four offences of aggravated robbery represented three separate incursions into criminality, the respondent fell to be sentenced as a serious repeat offender. Accordingly, the sentencing judge imposed a non-parole period of four-fifths of the head sentence, pursuant to s 54(1)(b) of the Sentencing Act 2017 (SA), being five years’ imprisonment. 6 The head sentence and the non-parole period were backdated to commence on 4 May 2022, the date the respondent was taken into custody. 7 The Crown submitted that the head sentence is so far below the appropriate standard that to allow it to remain would shake public confidence in the administration of justice. It submitted that the sentence required correction in accordance with well-established principles, so as to maintain proper sentencing standards for offending of this kind. While much of its argument was framed around complaints about the starting points and the apparent approach of the judge to concurrency, ultimately the complaint was one of outcome error. 8 For the reasons that follow, while we consider that the sentence is manifestly inadequate, we would refuse permission to appeal. -- 3 of 21 -- [2023] SASCA 76 Bleby and David JJA 2 The circumstances of the offending 9 On 30 April 2022, at about 7:00pm, the respondent stole both registration plates from a green Toyota RAV4 parked outside of 107 Flinders Street, Port Augusta (Count 5 – theft). 10 At about 7:20pm that night, the respondent entered Liquorland at Port Augusta. He placed a red and white bag on the counter. When the shop attendant picked up the bag, the respondent pulled out a knife and demanded that he put money into the bag. The attendant complied. The respondent then demanded that the attendant put bottles into the bag, which the attendant did. The respondent left the premises with about $514.55 in cash (Count 4 – aggravated robbery). 11 At around 7:47pm that night, the respondent was driving a vehicle that bore the stolen plates. He drove off from an Ampol service station without paying for petrol to a value of $104.57 (Count 1 – lower court information – making off without payment). 12 On 3 May 2022, at about 7:38pm, the respondent entered the Celebrations liquor store in Flagstaff Hill. He approached the store attendant and demanded that he empty the cash register into the respondent’s bag. He brandished a box cutter knife. The respondent grabbed the cash register and emptied the contents himself. The attendant was working alone. The respondent left the premises with about $532 in cash and about $205 worth of alcohol he had taken when leaving (Count 3 – aggravated robbery). 13 On 4 May 2022, at about 7:27pm, the respondent entered BWS on Anzac Highway, Plympton. He approached the counter, holding a folding knife in one hand and a bag in the other. He demanded that the store attendant open the cash register. She complied and handed the respondent cash from the register. The attendant was working alone. The respondent left the premises with about $244.80 in cash (Count 2 – aggravated robbery). 14 At about 7:44pm that night, the respondent entered BWS on Cross Road, Edwardstown. He approached the counter, while holding a bottle in one hand. He followed the attendant around the back of the counter and pointed a small folding knife at him. He then pointed the knife at the register and told the attendant to open it. The attendant complied and emptied the contents into a plastic bag that the respondent was carrying. The respondent then pointed the knife at a second register, but that was empty. The attendant was working alone. The respondent said thank you and left the premises with about $195 in cash (Count 1 – aggravated robbery). 15 At about 7:53pm, police located the respondent’s Holden Cruze. A police pursuit involving STAR operations ensued. The police ultimately terminated the pursuit due to the respondent’s dangerous driving, which included excessive speed and driving on the incorrect side of the road. Shortly thereafter, police again located the respondent’s vehicle and cornered it after the respondent collided with -- 4 of 21 -- [2023] SASCA 76 Bleby and David JJA 3 a STAR operations vehicle and numerous other cars (Count 2 – lower court information – drive dangerously to escape police pursuit). 16 The respondent resisted arrest violently as STAR operations officers removed the respondent from his vehicle (Count 3 – lower court information – resist police). Police located numerous items in the vehicle consistent with the respondent’s involvement in the four aggravated robberies, including clothing that matched CCTV footage from the robberies, a knife with a distinctive orange handle, various bottles of alcohol consistent with those stolen, cash, gloves, and a blue face mask. 17 The respondent did not answer any questions when interviewed by police. He provided a version of events to Mr Luke Williams, a psychologist who examined the respondent prior to sentencing. The respondent did not dispute the alleged version of events. He told Mr Williams: … he had stolen the car number plate as he wished to conceal the number plate of his car which was registered in his name. Mr Jensen-Coulson was asked why he had not filled the car with petrol prior to committing the first armed robbery. He stated that he did not have the money to pay for it and had known that if he had done this prior to committing the robbery it would have increased his chance of being detected by police who ‘would have been looking for him’. He reported that he was ‘trying to be polite’ with the victims of the robberies, reporting that one of the victims had ‘even joked with me’. He reported that when police had attempted to stop him he had seen ‘a black car with no sirens full of men with black masks looking angry’ and had thought that ‘it was people trying to kill me’. He stated that he had ‘taken off’ as a result, but had subsequently realised that they were police who were attempting to arrest him. … Mr Jensen-Coulson reported that his commission of the robberies was influenced by a desire to travel to Western Australia, where he believed he would be further away from the ‘bluetooth signal’ that he thought was allowing others to ‘hack’ into him. He also acknowledged, however, that he had committed the offences in order to fund his lifestyle at the time, and in particular his significant gambling losses. After gaining the money from the robberies he did not leave for Western Australia immediately, but rather continued to gamble and engage in recreational activities in Adelaide. This suggests that his desire to escape the ‘bluetooth’ signal was not his most prominent concern. Personal circumstances of the respondent 18 The sentencing judge set out the personal circumstances of the respondent in detail. 19 The respondent was 28 years old at the time of the offending. He was 29 at the time of sentencing. He was born and grew up in New South Wales, before moving to South Australia shortly prior to the subject offending. -- 5 of 21 -- [2023] SASCA 76 Bleby and David JJA 4 20 The respondent has a relatively lengthy prior criminal record. As the sentencing judge noted, he committed many of those offences as a youth. Notably, he has prior convictions for assault with intent to rob in company, common assault, property damage and street offences, such as resisting and hindering police. He has spent time in juvenile detention and was the subject of numerous bonds and orders for community service. The sentencing judge was uncertain if the respondent completed these bonds successfully or if he ever completed the community service as ordered. 21 Prior to the subject offending, the respondent had not served a custodial sentence as an adult offender. He was last before a court in Katoomba in 2018, where he was convicted on one count of possessing a prohibited drug and placed on a good behaviour bond. 22 The respondent spent a significant time in custody or on remand from the end of 2015 for 20 months, following being charged with sexual offences and accused of involvement in a gang rape. He maintained that he was innocent and was eventually exonerated. He described this as being a very traumatic time. The alleged offending drew significant media attention. The respondent was assaulted while on remand and was concerned about being recognised in public. 23 The sentencing judge acknowledged that the subject offending and much of the appellant’s prior offender history appeared to be inextricably linked to his drug addiction. 24 The respondent’s parents separated when he was approximately two years old. The respondent was raised predominately by his mother. He described his father as a violent alcoholic, although he was never physically abusive towards him. His mother, as sole provider, spent long hours working. His grandparents often cared for him. 25 The respondent had anger issues during his childhood and teenage years. He was suspended from primary school and expelled from high school. As a teenager, he began spending increasing amounts of time away from the family home and with a friend and her mother, who was a drug addict. He began to engage in antisocial and offending behaviour, resulting in him spending several months in juvenile detention at about the age of 15. He left school in Year 9 and commenced an apprenticeship as a bricklayer but ceased that due to medical issues. 26 The respondent has been employed on an intermittent basis. That employment has included tree lopping and industrial flue cleaning. His ability and motivation to maintain employment has been hindered by his ongoing substance abuse. At the time of sentencing, he had purchased a lawn mowing business with his mother’s assistance. This business failed because of his relapse into substance abuse. -- 6 of 21 -- [2023] SASCA 76 Bleby and David JJA 5 27 The respondent began using cannabis as a teenager. He ceased this in his early 20s, when he experienced an episode of paranoia when smoking whilst incarcerated. He began using heroin at the age of 23, taking it intravenously every day for about four months. On ceasing that, he began using Suboxone. He was prescribed this drug via a medication-assisted treatment for opioid dependence program. He was still taking Suboxone until the time immediately preceding the subject offences. 28 The respondent struggled with a methylamphetamine addiction for many years. At the time of offending, he was using methylamphetamine intravenously most days. This significantly impaired his functioning, resulting in periods of substance induced psychosis. One episode resulted in his hospitalisation in December 2021. The respondent continued using methylamphetamine following his discharge. 29 The respondent told Mr Williams that immediately prior to the offending, he intended to move from New South Wales to Western Australia, via South Australia, in order to remove himself from being controlled by people. He believed that he was being hacked by these people, using Bluetooth devices. He described experiencing mild auditory hallucinations, such as hearing faint voices encouraging him to get money and taunting him. 30 Notwithstanding numerous periods on bonds, presumably under the supervision of Corrections in New South Wales, the respondent told Mr Williams that he had never participated in any treatment to address his substance abuse issues. 31 Mr Williams assessed the respondent as suffering from a substance-induced psychosis at the time of offending, experiencing auditory hallucinations and significant delusional beliefs. He noted that the respondent retained some insight into the fact that his beliefs were induced by his methylamphetamine use. Despite this, the respondent continued to use the drug in large amounts. Mr Williams considered the respondent to be well aware of the wrongfulness of his conduct, noting the steps he took to avoid being detected, by stealing numberplates and using masks and hoods to conceal his identity. He noted the respondent’s limited insight into the impact of his offending on others, his reckless disregard for his and others’ safety and lack of remorse. 32 The respondent told Mr Williams that he offended to fund his move to Western Australia, but also acknowledged that he needed money to fund his lifestyle and pay for his gambling addiction. He reported that he had been gambling significant amounts of money prior to the offending and had lost approximately $50,000 over the course of five weeks. 33 Mr Williams concluded that the respondent’s actions could be partially attributed to and explained by his psychological state at the time of the offences, -- 7 of 21 -- [2023] SASCA 76 Bleby and David JJA 6 but that they were also heavily influenced by traditional risk factors related to violent offending and his ongoing use of methylamphetamine. 34 Mr Williams diagnosed the respondent as suffering from an antisocial personality disorder, stimulant use disorder and opioid use disorder. He said that the respondent was at a higher risk of further periods of psychosis if he was to resume using methylamphetamine. The respondent presented with a number of significant risk factors relevant to violent offending, given his prior history of violence, his limited pro-social community supports and his history of ongoing substance abuse issues. 35 Accordingly, Mr Williams considered that without appropriate treatment, the respondent remained at high risk of further general and violent offending. The respondent had not previously been sentenced to a period of imprisonment. He was therefore yet to engage with criminogenic intervention to address his offence-related risk factors. However, Mr Williams noted that the respondent had been able to spend significant time in the community offence-free and was able to refrain from offending with appropriate structures in place. The sentence 36 The sentencing judge remarked: Your offending was very serious offending. The four counts of aggravated robbery were committed against what are called 'soft targets', store attendants working alone at night by themselves simply doing their jobs. In R v Place, the Full Court highlighted the prevalence of crimes of armed robbery as against vulnerable targets and stated for such crimes, the principles of general deterrence and the protection of the public were of particular importance in sentencing. It was noted that as occurred in your case, such crimes were often committed by persons needing money to meet their drug or alcohol addiction. The court stated the standard of penalty appropriate for these types of armed robberies is in the order of six to eight years imprisonment. Of course, there will always be cases where, because of the personal and objective circumstances, the penalty imposed may fall outside of that general range, and it is important for all relevant factors to be considered when fixing the appropriate penalty. I accept the offending arose out of your all-consuming drug addiction and while you were likely suffering from a drug-induced psychosis. However, as outlined by Mr Williams, the offending was premeditated, insofar as you wore clothing designed to conceal your identity and stole the numberplates in order to hide the identity of your vehicle; and as I said earlier, the offending has had a lasting impact on the victims. In addition, it is clear that the considerable leniency you have been afforded in the past in sentencing has not deterred you from resorting to offending to continue to fund your drug and gambling addictions, such that personal deterrence is also an important factor in the imposition of any penalty. You are still a relatively young man. I very much hope that you heed what Mr Williams has said and make a concerted effort to address both your longstanding drug addiction and your history of violence. However, I agree with the submission made by the prosecutor that your prospects of rehabilitation must be guarded, having regard to your continued use of -- 8 of 21 -- [2023] SASCA 76 Bleby and David JJA 7 illicit drugs, notwithstanding you do have some insight as to the link between your use of drugs and your psychosis. The only appropriate penalty for the offending is a period of imprisonment. 37 In sentencing, her Honour addressed the offending in chronological order. 38 As to the count of aggravated robbery committed on 30 April 2022, but for the respondent’s early guilty plea, the sentencing judge would have imposed a period of imprisonment of four years and six months. This was reduced by 35 per cent to two years, 11 months, and four days. 39 The judge imposed convictions but no further penalty for the counts of theft and making off without payment, both committed on that date. 40 As to the aggravated robbery committed on 3 May 2022, the judge identified a starting point of imprisonment for five years. She reduced this by 35 per cent, on account of the early guilty pleas, to three years and three months. She indicated that this sentence was to be served partially concurrently with the sentence imposed for the aggravated robbery on 30 April 2022. 41 As to the offence of aggravated robbery committed on 4 May 2022 at BWS Plympton, the judge indicated that she would have imposed a sentence of five years, but for the guilty plea. Her Honour reduced this by 35 per cent to three years and three months, to be served partially concurrently with the previous sentences imposed. 42 As to the offence of aggravated robbery committed on 4 May 2022 at BWS Edwardstown, the judge would have imposed a sentence of imprisonment of five years. She reduced this by 35 per cent on account of the guilty plea to three years and three months. 43 The judge indicated a term of imprisonment of nine months for the single count of driving dangerously to escape police pursuit. She reduced this by 30 per cent on account of the guilty pleas to six months and 10 days, to be served partially concurrently with the sentences imposed for the aggravated robberies committed on that day. 44 The judge disqualified the respondent from holding or obtaining a driver’s licence for a period of two years, to commence either on the date he is released from custody, or upon on any current period of disqualification ending, whichever is the latest. 45 The judge imposed a conviction but no further penalty for the offence of resist police. 46 While the judge indicated that the periods of imprisonment were to be served partially concurrently with each other, she did not identify the degree of -- 9 of 21 -- [2023] SASCA 76 Bleby and David JJA 8 concurrency in each case. Rather, she fixed an overall head sentence of imprisonment of six years and three months. In doing so, she said: I have given consideration to the principles of totality and having regard to those principles and the degree of concurrency … 47 The judge then considered whether to order the sentence be suspended or served on home detention. She considered that having regard to the seriousness of the offending, there was no good reason to suspend the sentence, nor was the respondent an appropriate candidate to serve the sentence on home detention. 48 The judge was satisfied that three of the aggravated robberies were committed on separate occasions, such that the respondent was a serious repeat offender. The judge fixed a non-parole period of four-fifths of the head sentence, being five years.1 Both the head sentence and the non-parole period were backdated to commence on 4 May 2022, the date the respondent was taken into custody. Principles governing a Crown appeal 49 The principles governing a Crown appeal against sentence are well established. In order to guard against erosion of the common law protection against double jeopardy, permission should only be granted to the Crown to appeal against sentence in cases that are ‘rare and exceptional’.2 When used in the context of sentencing, the expression ‘double jeopardy’ refers to the element of distress and anxiety an offender suffers from being exposed to the possibility of a more severe sentence. 50 In R v Kelly, Lovell JA (dissenting on whether to grant permission in that case) described Crown appeals as involving a two-step process:3 First, an appellate court determines whether error been established, as error must be identified before an appellate court can interfere. A specific error may be identified if a sentencing judge has acted upon a wrong principle, mistaken the facts, failed to consider a material consideration, or allowed irrelevant matters to impact the decision. Alternatively, where a specific error cannot be identified, the sentence imposed can be so manifestly excessive or inadequate that the only inference to be drawn is that there was a failure to properly exercise the sentencing discretion.4 (Footnote in original) 51 A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result. The determination that a sentence is manifestly inadequate is insufficient to justify permission to appeal. To succeed 1 Sentencing Act 2017 (SA) s 54(1)(b). 2 Everett v The Queen (1994) 181 CLR 295 at 299 (Brennan, Deane, Dawson and Gaudron JJ). 3 [2023] SASCA 22 at [36]. 4 House v The King (1936) 55 CLR 499. -- 10 of 21 -- [2023] SASCA 76 Bleby and David JJA 9 on this ground, absent identifying a process error, the Crown must establish that the sentence imposed was unreasonable or unjust.5 52 Whether the Crown should be granted permission to appeal involves issues ranging beyond those involved in the merits of the appeal.6 In R v Buttgieg, this Court explained the principles governing when an appeal court will intervene on a Crown appeal against sentence:7 A Crown appeal against the adequacy of a sentence should be approached with great care, and the ‘rare and exceptional’ test should be rigorously applied. However, the Crown will be granted permission to appeal if it is necessary to enable the Court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or if a sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would ‘shock the public conscience’.8 Both error and strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate. The Crown must persuade the Court that such strong reasons of public policy exist which demand permission to appeal be granted despite the public interest in not twice vexing the respondent.9 (Footnotes in original) 53 In R v Yaroslavceff, Doyle JA considered the notion of a ‘rare and exceptional case’:10 The phrase ‘rare and exceptional’ does not direct attention to the number or proportion of Crown appeals in which the appellate court’s intervention might be appropriate, for these are matters which depend upon the sentencing practices of first instances judges, and the number and nature of the appeals brought by the Director. Rather, it requires a qualitative assessment. It directs attention to the nature of the error that is required to justify intervention. In this way, it is intended to distinguish the circumstances in which it might be appropriate to intervene to correct a manifestly inadequate sentence in a Crown appeal from the circumstances in which it might be appropriate to intervene to correct a manifestly excessive sentence in a defence appeal. The line between a sentence which is ‘merely’ manifestly inadequate, and a sentence which is so far below the appropriate standard as to warrant a grant of permission in a Crown appeal is not a bright one. It involves questions of degree, and, in a case such as the present, requires a balancing of the public interest in maintaining appropriate sentencing standards against the hardship to a defendant associated with being twice vexed. (Footnotes omitted) 54 The Crown will be granted permission to appeal a sentence where it is necessary for the Court to maintain adequate sentencing standards, to enable 5 R v Buttigieg [2020] SASCFC 38; R v McIntyre (2020) 138 SASR 17; R v Yaroslavceff [2022] SASCA 123. 6 R v Butler (a pseudonym) [2022] SASCA 112 at [72] (per David JA and Mazza AJA). 7 R v Buttgieg [2020] SASCFC 38 at [39] (Lovell J, Kourakis CJ and Nicholson J agreeing). 8 R v Nemer (2003) 87 SASR 168 at 172 [24]; R v Harkin [2011] SASCFC 24 at [19]. 9 R v McIntosh [2017] SASCFC 87 at [16]. 10 [2022] SASCA 123 at [71]-[72]. -- 11 of 21 -- [2023] SASCA 76 Bleby and David JJA 10 idiosyncratic views of individual judges to be corrected or to correct a sentence that is so manifestly so inadequate that it amounts to an error of principle or would ‘shock the public conscience’.11 In Malvaso v The Queen, Deane and McHugh JJ emphasised:12 … the Court entrusted with the jurisdiction to grant or refuse such leave … should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified. 55 However, as King CJ in R v Drewett observed, ‘even great disparity between the sentence imposed and the sentence which the appellate court would regard as appropriate, does not of itself justify allowing a prosecution appeal’.13 Nevertheless, it may be appropriate to grant permission to appeal even though no general point of principle is established, where the sentence is so far below the appropriate standard that allowing it to stand would undermine public confidence in the administration of justice.14 Aggravated robbery: the applicable standard of sentencing 56 An assessment of whether a sentence is manifestly excessive or inadequate requires consideration of the maximum penalty for the relevant offence, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. Ultimately, manifest excess or inadequacy is a conclusion and may not permit ‘lengthy exposition’.15 57 The maximum penalty for aggravated robbery is life imprisonment. For a basic offence, the maximum penalty is 15 years.16 The maximum penalties reflect the seriousness with which Parliament views this type of offending. 58 In R v Place,17 the Court of Criminal Appeal confirmed that the standard of penalty for armed robbery18 remained in the order of six to eight years. The Court emphasised, however, the need to consider the individual circumstances of the offence and the offender in determining the applicability of that standard. Relevantly, their Honours observed:19 11 R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ). 12 Malvaso v The Queen (1989) 168 CLR 227 at 234-235. 13 R v Drewett (1983) 35 SASR 344 at 345. 14 R v Osenkowski (1982) 30 SASR 212 at 213 (King CJ); R v Nemer (2003) 87 SASR 168 at [24] (Doyle CJ). 15 Hili v The Queen (2010) 242 CLR 520 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 16 Criminal Law Consolidation Act 1935 (SA), s 137(1). 17 (2002) 81 SASR 395. 18 The offence of armed robbery was governed by s 158 of the Criminal Law Consolidation Act 1935 (SA). Section 158 was repealed and replaced with s 137 of the Criminal Law Consolidation Act 1935 (SA) by Schedule 26/2002 s 4 (5 July 2003). 19 R v Place (2002) 81 SASR 395 at [100]-[101]. -- 12 of 21 -- [2023] SASCA 76 Bleby and David JJA 11 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. 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. 59 The Court in Place cautioned against fixing labels to particular types of armed robbery, such as ‘street offences’, or large-scale armed hold-ups. It did so by reference to the earlier decision of R v Newton,20 in which the appellant was sentenced to a term of three years and six months imprisonment for one count of armed robbery:21 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. 60 The sentencing standard was further considered by this Court in Soun v The Queen; R v Soun,22 in which the applicant was sentenced to four years, six months and 11 days’ imprisonment, with a non-parole period of two years and eight months, for one count of aggravated robbery. The ground of appeal was that the sentence was manifestly excessive. The Crown cross-appealed on the ground that the sentence was manifestly inadequate. The applicant had stolen the handbag of a 90-year-old woman. In the course of that theft, he pulled away the victim’s walking frame, causing her to fall. The applicant fled, dropping the handbag into a bag held by a co-offender. 61 The Court noted that the six to eight year standard, identified in R v Place, was ‘not inflexible’ and depended on the ‘range of personal and objective 20 [2002] SASC 36. 21 R v Place (2002) 81 SASR 395 at [106]. 22 Soun v The Queen; R v Soun [2021] SASCA 119. -- 13 of 21 -- [2023] SASCA 76 Bleby and David JJA 12 circumstances associated with the offence and the offender’.23 Referring to R v Gannon,24 the Court considered the importance of maintaining a substantial difference between sentences for armed robberies and basic offences of robbery.25 It noted the comments of Kourakis CJ (with whom Kelly and Blue JJ agreed) in R v Brant,26 as to the appropriate starting point for an offence of robbery without the use of a weapon:27 In Gannon, after reviewing the cases of R v Blackmore, R v Van Huizen, R v Betts and R v McGlynn, I concluded that the starting point for robberies from retail premises or from individuals, either without violence or with some violence, but not involving a weapon, was generally four years. 62 Ultimately, the Court found that that the starting point of just under five years was neither manifestly excessive nor inadequate, having regard to the need to protect the community, particularly the elderly, on the one hand, and the circumstances personal to the offender (including a heroin addiction and participation in an arranged marriage at age 18) on the other. 63 Departure from sentencing range described in R v Place does not require exceptional circumstances.28 In Place itself, the Court observed:29 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”. The appeal 64 As identified above, the appellant complained only that the head sentence was manifestly inadequate. It submitted that the offending in the present case fell within the broad description of the type of offences to which the R v Place sentencing standard applies. The head sentence was so inadequate, having regard to that standard, that the only inference to be drawn was that the judge failed properly to exercise the sentencing discretion. This is notwithstanding that the judge identified, by reference to Place, that the appropriate penalty for an offence of this nature was six to eight years’ imprisonment, and that there will always be cases that fall outside of that general range. 23 Soun v The Queen; R v Soun [2021] SASCA 119 at [16] citing R v Harradine & Harradine [2012] SASCFC 103 at [22]. 24 (2012) 113 SASR 1 at [33] (Kourakis J). 25 Soun v The Queen; R v Soun [2021] SASCA 119 at [17] citing R v Gannon (2012) 113 SASR 1 at [33]. 26 [2018] SASCFC 72. 27 R v Brant [2018] SASCFC 72 at [30]. 28 R v Place (2002) 81 SASR 395 at [19]; Wong v The Queen (2001) 207 CLR 584. 29 R v Place (2002) 81 SASR 395 at [20]. -- 14 of 21 -- [2023] SASCA 76 Bleby and David JJA 13 65 In this regard, the Crown submitted that the starting point for each aggravated robbery offence was below that which was required. It further submitted that the paramount error necessarily lay in the degree of concurrency that must have been applied as between the individual sentences. 66 The judge identified: • that the respondent had committed this offending against ‘soft targets’; • the offending was premeditated insofar as the respondent took steps to conceal his physical identity and the use of the stolen registration plates; • there was a heightened need for personal deterrence noting that the respondent had been afforded considerable leniency by the courts in the past; • the respondent continued to engage in drug and gambling behaviours despite the leniency of the court; and • the respondent had guarded prospects for rehabilitation. 67 The Crown submitted that these matters provided no basis for departing from a starting point of six to eight years, when looking at each of the individual robberies. The four robberies were committed at night. All involved the use of a knife produced to an attendant. At least three of the attendants were working alone. 68 As identified above, the judge found the offences committed on 30 April, 3 May and 4 May to be separate incursions into criminal offending for the purposes of s 54 of the Sentencing Act. The Crown submitted that this reflected the separate nature of the offences and highlighted the applicability of the standard in Place to each. It further submitted that the separate nature of the offences indicated a wrong approach to the sentencing task, in that the judge gave too much weight to partial concurrency principles in arriving at the eventual sentence of six years and three months. 69 The Crown submitted that the judge should have imposed cumulative sentences in respect of the aggravated robberies, as each of these was a separate incursion. The sentence for the offence of driving dangerously to escape police pursuit could have been made concurrent with that for the final robbery, as this was part and parcel with that offending. If, (bearing in mind the discounts for the guilty pleas), the total sentence was then disproportionate in all of the circumstances, a further discount could be made for totality. That was the approach condoned in Place. 70 The Crown was reluctant to accept that there was any room for concurrency, despite the offences occurring in quick succession, albeit not on the same day, and the respondent being motivated by the need for drugs, gambling and his psychosis. It emphasised that Place identified that these types of robberies are generally -- 15 of 21 -- [2023] SASCA 76 Bleby and David JJA 14 committed by people who are seeking money for drugs, gambling or lifestyle.30 It accepted that some partial concurrency with respect to the two aggravated robberies committed on 4 May might be justified. However, it submitted that even taking that approach, the resulting sentence was simply too low for four robberies of this nature; the judge gave too great an emphasis on partial concurrency to arrive at the figure of six years and three months. 71 The respondent submitted that the following matters to which the sentencing judge had regard justified imposing a penalty outside of the general range: • the judge noted the age of respondent, being 29 at sentencing and 28 at the time of offending, and that he was ‘still a relatively young man’; • the judge recognised that the respondent had a relatively lengthy criminal record, albeit the majority of offences were committed as a child; • the respondent had not served a custodial sentence as an adult offender. The salutary effect of being sentenced to imprisonment in an adult prison was a matter that warranted considerable weight;31 • the judge accepted that the offending arose out of the respondent’s drug addiction and held that the respondent committed the offences while he was likely suffering from a drug-induced psychosis. The drug-induced psychosis was a significant precipitating factor of the offending; and • on prospects of rehabilitation, the judge recognised that the respondent had some insight as to link between his use of drugs and his psychosis. The judge encouraged the respondent to take the opportunity to address his criminogenic factors, which he had not previously addressed. 72 Against these matters, the Crown submitted that, at 29 years old, the respondent was ‘hardly a youth or even youthful’ and was not a stranger to the criminal justice system. Although much of the respondent’s prior offending occurred as a youth, this included one count of robbery in company and five separate counts of resist police. Further, the respondent has spent time in an adult prison, albeit on remand for charges that were later discontinued. 73 That the respondent was suffering from a substance-induced psychosis at the time of the offending but still alive to the wrongfulness of his actions was not, in the Crown’s submission, a mitigating factor. This was especially so in light of his report of being hospitalised following a substance-induced psychosis in December 2021, yet he continued to use methylamphetamine following his discharge. 74 The Crown further contended that the respondent had limited insight into his offending and its impact on others, as well as his reckless disregard for the safety 30 R v Place (2002) 81 SASR 395 at [100]. 31 R v Schultz [2010] SASCFC 47 at [30] (per White, David and Peek JJ concurring). -- 16 of 21 -- [2023] SASCA 76 Bleby and David JJA 15 of himself and others. The respondent’s position and prospects for rehabilitation could be contrasted with those of the appellant in Place, where there existed extenuating circumstances of mitigation:32 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 program. The sentencing judge formed the view that it is unlikely that the appellant will reoffend and we see no reason to disagree with his Honour's assessment. 75 The sentencing judge noted that the considerable leniency the respondent had been afforded in the past had not deterred him from resorting to offending to continue to fund his drug and gambling addictions. Personal deterrence was consequently an important factor in any penalty. Further, the judge agreed with the submission made by the prosecutor that his prospects of rehabilitation must be guarded, having regard to his continued use of illicit drugs, notwithstanding that he has some insight into the link between drugs and his psychosis. The Crown submitted that nothing in the respondent’s history indicates that he ‘will change his ways’ when released. 76 The respondent accepted that it was unclear from the sentencing remarks how the judge reached the final sentence, specifically with respect to degrees of concurrency, and that it would have been better if she was clearer. However, as the Court held in Trott-Dan v The King:33 … there are no ‘hard and fast rules’ as to whether sentences should be ordered to be served either wholly or partially concurrently. Flexibility must be afforded to sentencing judges in ensuring proportionality; that is, the aggregate sentence is ‘just and appropriate to the totality of the appellant’s offending behaviour.’ This may be done by various sentencing mechanisms. For example, a proportionate sentence may be achieved by ordering concurrency between individual sentences, or by moderating latter individual sentences in acknowledgment that earlier sentences have already done much to achieve sentencing objectives, or by a final reduction for totality whereby the accumulated sentence is adjusted for proportionality, or by utilising s 26 of the Sentencing Act. (Footnotes omitted). 77 The respondent contended that even where the connection between two offences is insufficient to characterise them as a single course of conduct, there may nevertheless be sufficient reason to make the sentences at least partially concurrent, where the imposition of a penalty for one offence affects what is 32 R v Place (2002) 81 SASR 395 at [110]. 33 [2023] SASCA 2 at [54]. -- 17 of 21 -- [2023] SASCA 76 Bleby and David JJA 16 necessary to achieve the deterrent punitive or rehabilitative objects of the sentence for other offending.34 Manifest inadequacy 78 The features referred to by the Crown, namely the element of pre-meditation, the nature and use of the weapon, the vulnerability of the victims and the lack of insight into the offending, together demonstrate the serious nature of the respondent’s offending. 79 The individual starting points for the aggravated robbery offences were low. The Crown’s observation that the judge must have allowed for significant periods of concurrency was well made, although once account is given to the discounts applied for the various guilty pleas, this is not as significant as might first appear. The total of the discounted head sentences, were they to be accumulated, would be 13 years, two months and 14 days. 80 Ultimately, whether greater attention is focused on the lower than usual head sentences, or the considerable degree of concurrency that must have been afforded, the resulting head sentence was very low. At least three of the aggravated robberies constituted separate incursions, albeit that they were committed within a short period of time. The respondent’s own drug use was significantly responsible for his mental health failures precipitating the offending. He has a poor offending history. Having said that, this history was largely from when the respondent was a child. He has not spent time in an adult prison on account of his offending. He has some, albeit quite guarded, prospects of rehabilitation. 81 There was scope for selecting starting points below the range identified in Place and for some degree of concurrency. Nevertheless, had the respondent not pleaded guilty at an early stage, in our view a head sentence of no less than twelve years would have been warranted. The respondent having entered early guilty pleas, in all of the circumstances the offending warranted a head sentence of at least eight years. In our view, the sentence is manifestly inadequate. Permission 82 It remains to be determined whether this is an appropriate case for the Court to grant permission to appeal. The fact that the sentence is manifestly inadequate is a relevant consideration in favour of intervention, but does not, of itself, justify granting permission to appeal.35 83 Mr Williams’ report and the sentencing judge’s remarks clearly set out the difficulties the respondent faced, especially in his formative years. We have addressed those difficulties above. Mr Williams diagnosed the respondent as suffering from substance induced psychosis disorder at the time of the offending 34 Edmonds (A Pseudonym) v The Queen [2022] SASCA 11 at [62]-[67]. 35 R v Yaroslavceff [2022] SASCA 123 at [69] (per Doyle JA); R v Drewett (1983) 35 SASR 344 at 345 (per King CJ). -- 18 of 21 -- [2023] SASCA 76 Bleby and David JJA 17 and, more generally, antisocial personality disorder, stimulant use disorder and opioid use disorder. Mr Williams considered that appropriate structure, such as employment and refraining from the use of illicit substances will be important factors in promoting the respondent’s ability to live an offence free lifestyle upon his release into the community. 84 The respondent told Mr Williams that prior to the offending, he had never participated in any treatment to address his substance use, notwithstanding having spent numerous periods on bonds, presumably under the supervision of Corrections in New South Wales. Since being incarcerated, the respondent has engaged in some programs for rehabilitation. 85 The respondent has served approximately 12 months in custody. His circumstances do not carry the extra double jeopardy consideration of someone who has been released on bail pending appeal or originally sentenced to serve their sentence on home detention.36 Nevertheless, in this case, the respondent is a man in his late 20s who has been incarcerated for the first time in an adult prison, for an identified period of time. The burden of his exposure to double jeopardy remains significant. 86 In our view, while the sentence was manifestly inadequate, it was not ‘so far below the appropriate standard as to warrant a grant of permission in a Crown appeal’.37 It is not necessary to grant permission to establish an adequate standard of punishment. The purpose of achieving consistency in sentencing and sentencing principles can be met in this case by the finding of manifest inadequacy and the reasons given for that conclusion. Further, we do not think that this sentence is so low as to undermine public confidence in the administration of justice. Notwithstanding the inadequacy of the sentence, we consider that to grant permission to appeal would come at too high a cost in twice vexing the respondent. This case is not so rare and exceptional as to warrant permission to appeal. 87 We would refuse permission to appeal. 88 DALTON AJA: I agree with the orders proposed by Bleby and David JJA and subject to one matter, agree with their reasons. 89 The point of difference is that I am not prepared to say that the sentence below was manifestly inadequate. It was certainly low having regard to the general statements in R v Place38 as to the standards of penalty appropriate for armed robberies. In Place, the Full Court said that the standard of penalty appropriate for such crimes was ‘in the order of six to eight years imprisonment’.39 However, the Full Court made it clear that the circumstances of the particular offending and the particular offender determine what penalty is appropriate in any particular case. 36 See, e.g., R v Kelly [2023] SASCA 22. 37 R v Yaroslavceff [2022] SASCA 123 at [72]. 38 (2002) 81 SASR 395. 39 R v Place (2002) 81 SASR 395 at [100]. -- 19 of 21 -- [2023] SASCA 76 Dalton AJA 18 That is in accordance with the broad nature of a sentencing judge’s discretion spoken of in Barbaro v The Queen.40 90 In this case, the respondent’s offending was within the type of case spoken of in Place: it consisted of armed robberies of retail stores by a man addicted to drugs. However, the respondent made no attempt to do physical harm to anyone, and obtained only a few hundred dollars at each robbery. I do understand that there were lasting psychological consequences for the young shop assistants who the respondent confronted. Nonetheless, I do not think the offending is to be regarded as a particularly serious example of the category of offending described in Place. 91 The sentencing judge had to balance the criminality of the offending with the respondent’s history, including a difficult upbringing which saw him using drugs by his teen years, so that by the time of the offending he was suffering from intermittent periods of drug-induced psychosis. It was accepted that he was suffering from drug-induced psychosis at the time of the offending and one of the tasks of the psychologist Williams was to assess whether or not he was criminally responsible for his actions. 92 It is true that the respondent had a criminal history. However, it is a history which mitigated over time; the frequency and severity of the offending lessened with maturity. There were no offences of violence as an adult; only graffiti offences and possession of drug offences (there as one resist arrest). As an adult he received sentences of community service and good behaviour bonds. 93 In considering what was an appropriate sentence the sentencing judge had to take into account the fact that the respondent was a serious repeat offender within the meaning of s 54(1) of the Sentencing Act 2017. This meant that the non-parole period which she fixed in relation to the sentence had to be at least four-fifths of the length of that sentence. While ‘courts should not attempt to subvert the intention’ of legislative provisions such as s 54(1)(b), they ‘cannot ignore the serious aggravating effect upon a sentence’ of such a provision in considering ‘what sentence is ‘just in all the circumstances’’.41 In this regard, it is noteworthy that R v Place was decided before s 54(1)(b) of the Sentencing Act was introduced. In considering the applicability of the sentencing standards discussed in R v Place, it was incumbent upon the sentencing judge to take account of the fact that imposition of the type of head sentences discussed in that case would result in a considerably more severe sentence in this case because s 54(1)(b) applied. 94 In considering whether a sentence is manifestly inadequate, or manifestly excessive, it is the whole sentence which must be considered. That is, the head sentence is not to be considered separately from the time to be served in custody, or any other aspect of the sentence. I am not persuaded that a sentence which saw 40 (2014) 253 CLR 58 at [25], [34] and [40]-[41]. 41 R v McDougall & Collas [2007] 2 Qd R 87 at [18] following R v Everleigh [2003] 1 Qd R 398 at [54]. See also R v Turner [2016] QCA 282 at [38]-[39]; R v Free [2020] QCA 58 at [47]; R v Smith [2022] QCA 89 at [14] all following McDougall & Collas [2007] 2 Qd R 87. -- 20 of 21 -- [2023] SASCA 76 Dalton AJA 19 a 28-year-old man serve at least five years actual imprisonment for this offending was manifestly inadequate. -- 21 of 21 --