R v WAKEFIELD

[2015] SASCFC 92

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WAKEFIELD

[2015] SASCFC 92

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Nicholson)

28 July 2015

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - OTHER OFFENCES INVOLVING GRIEVOUS BODILY HARM OR SERIOUS INJURY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - PARITY BETWEEN CO-OFFENDERS

This is an appeal against a single sentence imposed in the District Court of South Australia on a count of aggravated robbery and a count of aggravated recklessly causing harm.  The appellant committed the offences with his brother J on 19 April 2013.

The DPP conceded the ground of appeal.  The DPP accepted that the Judge erred in sentencing the appellant by failing to give adequate reasons for making a reduction of only 12.5 per cent.

Held (The Court):

1  The appeal is allowed.

2  The original sentence is set aside, and the appellant is resentenced.

Criminal Law Consolidation Act 1935 (SA) s 285B; Road Traffic Act 1961 (SA) s 169B, referred to.

R v WAKEFIELD
[2015] SASCFC 92

Court of Criminal Appeal:       Kourakis CJ, Sulan and Nicholson JJ

1. THE COURT:         This is an appeal against a single sentence imposed in the District Court on a count of aggravated robbery and a count of aggravated recklessly causing harm.  The appellant committed the offences with his brother, J, on 19 April 2013.  The victim, K, a taxi driver, was forced at knifepoint to drive his taxi a short distance at the direction of the appellant and his brother.  It was the appellant who held the knife to K’s throat resulting in lacerations to K’s throat and fingers.  K managed to escape from his car, but the appellant then got into the front driver’s seat of the taxi and drove off with J, the appellant’s brother, as his passenger.  The appellant drove for about four kilometres, reaching speeds of up to 111 kilometres per hour over several major roads before crashing into a store in Brooklyn Park.

2. On the 30August 2013 the appellant and J pleaded guilty to aggravated robbery in the Adelaide Magistrates Court.  The information laid in the Adelaide Magistrates Court also charged an offence of aggravated intentionally causing harm, which charge both brothers denied.  On 30 September 2013 an ex officio information charging both the appellant and J with aggravated robbery, aggravated intentionally causing harm and driving in a manner dangerous was laid in the District Court.  For some months thereafter negotiations ensued between both accused and the Director of Public Prosecutions (DPP).

3. On 22 January 2014 the DPP laid a fresh information charging the appellant and J with aggravated robbery and aggravated recklessly causing harm and charging the appellant only with driving in a manner dangerous to the public.  J pleaded guilty to the first two counts and the appellant to all three counts.

4. In sentencing submissions the DPP contended that the appellant and J were entitled to up to a 30 per cent sentence reduction on the aggravated robbery and up to 10 per cent for the aggravated recklessly causing harm.  Counsel for the appellant and J submitted that they were entitled to a sentence reduction of up to 30 per cent for both offences.  The appellant and J were sentenced on 16 April 2014.  The Judge referred to the factual differences between the appellant and J in the commission of the offences but foreshadowed that he would not distinguish between them in sentencing for the course of offending.  The Judge commenced with a notional head sentence of eight years for both and reduced it by 12.5 percent to seven years for their guilty pleas.  In addition to the sentence imposed for the aggravated robbery and aggravated recklessly causing harm offence, J was sentenced to a cumulative term of four months imprisonment for two unrelated offences of illegal use of a vehicle.  It is inherent in the Judge’s approach that either his Honour did not impose any additional penalty on the appellant for driving in a manner dangerous to the public or, alternatively, that he wrongly increased J’s sentence on account of his involvement with the offence even though he had not been convicted of it.

5. J appealed against his sentence on 5 August 2014.  An extension of time within which to bring his appeal was granted.  On 6 February 2015, the Court of Criminal Appeal (the Court) allowed J’s appeal and set aside the sentence imposed by the Judge on the ground that the Judge’s reasons for reducing the sentence by only 12.5 per cent were inadequate.  The Court reduced the notional starting point of eight years by 30 per cent to five years and eight months.  The Court imposed a cumulative three month term of imprisonment for the illegal use of a vehicle offences and fixed a non-parole period of two years and eleven months.

6. On this appeal the DPP accepts that the Judge erred in the sentencing of the appellant by failing to give adequate reasons for making a reduction of only 12.5 per cent. The DPP also accepts that the appellant’s appeal should be allowed and that he be resentenced on the basis of a 30 per cent reduction from the notional starting point of eight years on the aggravated robbery and aggravated recklessly causing harm offence in order to maintain parity with the sentence imposed on J. Even though the DPP takes that position the DPP submits that in selecting 30 per cent as the applicable reduction in J’s appeal, the Court failed to take into account section 285B of the Criminal Law Consolidation Act 1935 (SA). That issue may need to be revisited in the future.

7. We would set aside the sentence imposed by the Judge on the grounds of his failure to give adequate reasons for reducing the head sentence by 12.5 per cent.  In order to maintain parity with the sentence imposed on J we would impose a sentence of imprisonment of five years and eight months for the offences of aggravated robbery and aggravated recklessly causing harm.  The appellant must also be sentenced for the offence of driving in a manner dangerous to the public, which offence carries a maximum penalty of two years imprisonment and a mandatory licence disqualification of not less than 12 months.  That offence was serious in itself and is independent of the offending which preceded it.  It is not appropriate to make the sentence to be imposed for that offence concurrent with the sentence of five years and eight months.  Indeed, J would have a legitimate sense of grievance if there were no differentiation between their sentences by reason of the appellant’s conviction of the additional offence of driving in a manner dangerous to the public.

8. The DPP accepts that the appellant is entitled to a discount of 30 per cent on the offence of driving in a manner dangerous to the public. We commence with a notional sentence of 18 weeks and reduce that to three months for the appellant’s plea of guilty. The total head sentence is, therefore, five years and eleven months. We fix a non-parole of period of two years and eleven months. The appellant’s driver’s licence will be disqualified for a period of twelve months. That period of disqualification will commence on the appellant’s release from imprisonment in accordance with s 169B of the Road Traffic Act 1961 (SA).