JUDGMENT OF: Blow CJ, Estcourt J and Marshall AJ

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Attempted aggravated armed robbery - Sentence of 2 years 6 months' imprisonment with 9 months thereof suspended and eligibility for parole after 10½ months - Remorseful young man with no prior criminal convictions - Not manifestly excessive.

Judgment Number: [2017] TASCCA 18

1. The appellant, Shaun Armstrong, pleaded guilty to a charge of attempted aggravated armed robbery. Pearce J sentenced him to 2 years 6 months' imprisonment, with 9 months thereof suspended, and eligibility for parole after serving half of the balance of 21 months' imprisonment. The appellant appealed, contending that the sentence was manifestly excessive. At the conclusion of the hearing, this Court dismissed the appeal, reserving its reasons for publication at a later date.
2. My reasons for joining in the making of the order dismissing the appeal are the same as those stated by Estcourt J and Marshall AJ.

1. The appellant, Shaun Robert Armstrong, appeals against a sentence imposed upon him by Pearce J on 26 June 2017.
2. His Honour convicted the appellant of the crime of attempted aggravated armed robbery and sentenced him to imprisonment for two years and six months from 9 June 2017, nine months of which were suspended for three years. His Honour ordered that the appellant not be eligible for parole until he had served half of the actual term of imprisonment imposed.
3. The sole ground of the appellant's appeal is that the sentence was manifestly excessive.

1. The frequently stated legal principles applicable to appeals against sentence on the ground of manifest excess or inadequacy are clear and well settled. They can be found succinctly stated in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]-[34], per Porter J, and in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8], per Pearce J.

1. The learned sentencing judge made the following comments on passing sentence, which comments, in my view, set out sufficiently for the purposes of this appeal the facts of the appellant's offending, his personal circumstances, including his young age and his lack of relevant prior convictions, and the mitigating factor of his plea of guilty:

"Shaun Armstrong pleads guilty to attempted aggravated armed robbery. At about 7 am on Sunday, 23 April 2017, he and a young female associate went to a milk bar in Acton, in upper Burnie, near where she lived. They each took a 30 cm kitchen knife from her home. He wore sunglasses and tied a balaclava around his head which covered most of his face. Inside the milk bar the male business proprietor was behind the counter. Customers were also present. After walking in, the defendant raised the knife to head height and aggressively shouted a demand for money from the proprietor. The proprietor refused and walked towards the defendant who fled, followed by his companion. They were observed by witnesses and caught on CCTV and quickly found by the police.

The defendant is 22. He had a terrible upbringing. He was neglected and abused by his parents and removed from their care when only 6, but to unstable foster placements. He started using cannabis when he was 14 and methylamphetamine when he was 15. Despite his life being dominated by substance abuse, and his limited education, he managed to find some employment and avoid crime. He has no prior convictions for violence or dishonesty and until now has achieved his intention of avoiding the example of his alcoholic and criminal father. He has two children from a former relationship. As a result of his current partner's good influence he stopped using methylamphetamine and had moderated his cannabis use. They have a child born only about two weeks ago.

The defendant says that in the period leading up to this crime he was affected by the stress of a dispute with his former partner about contact with his older children. He reverted to increased cannabis use, which he could not pay for, and fell into debt. He and his co-accused, not his partner, were drinking and decided on the spur of the moment to rob the store for money. As to his alcohol use he has a prior conviction for an alcohol related driving offence. The possibility of rehabilitation is always of significance for a man of his age and lack of prior convictions. However, the seriousness of the crime of aggravated armed robbery means that punishment and deterrence are the most important sentencing factors. This crime was committed against vulnerable commercial premises at a time when staff and customers were likely to be present and were in fact present. It was to obtain money for a drug debt. Use of a knife in such a threatening manner has potential to lead to violence and injury, and commonly has a devastating psychological impact on victims. Use of a disguise adds to the terror to which victims are subject. Despite the apparent lack of concern demonstrated by the proprietor at the time, his victim impact statement indicates that he was secretly terrified and only later came to appreciate the potential danger. He describes suffering from the type of psychological effects which may be anticipated from crimes of this type. His sleep and mood and relationships are all affected. Ordinarily, attempts to commit crimes are treated as less serious than completed crimes because the harm caused is less. However, most of the harm which may have arisen from this crime was caused in the course of the attempt. Not a great deal would have been added in terms of seriousness, if the defendant had made off with some money.

It is in the defendant's favour that he entered a very early plea of guilty. It indicates an acceptance of responsibility and facilitates the course of justice, even though the case against him was overwhelming. I will allow the earliest possible opportunity to apply for parole and suspend some of the sentence. I will backdate the sentence to account for the 10 days he has already spent in custody."

1. In Bartle v Tasmania [2016] TASCCA 18, a case of armed robbery, Brett J said at [22]:

"22 In Streets v Tasmania [2016] TASCCA 13, Pearce J (with whom Tennent and Wood JJ agreed) reviewed a number of authorities relevant to sentencing for aggravated armed robbery. It is apparent that many of his Honour's comments are apposite to the offence of armed robbery. It is convenient to set out his Honour's comments, at [12]-[13], in full:

'This Court has repeatedly emphasised the seriousness of the crime of aggravated armed robbery: R v McFarlane [1993] TASSC 161, 2 Tas R 201 per Crawford J (as he then was) at 210 and Zeeman J at 221; Walsh v The Queen [1996] TASSC 59, 6 Tas R 70 per Wright J at 86. It calls for a sentence of deterrence, both general and personal, and denunciation: McFarlane per Cox J (as he then was) at 205. Courts must make clear to those who may be minded to commit such crimes that they will be visited with immediate and substantial terms of imprisonment: R v Everett and Phillips [1994] TASSC 39, 72 A Crim R 422 at 427 per Zeeman J at 441.

Sentences for armed robbery and aggravated armed robbery have been the subject of a number of recent appeals to this Court: Braslin and Cowen v Tasmania [2010] TASCCA 1; Crosswell v Tasmania [2012] TASCCA 1; DPP v Burns [2012] TASCCA 11; _Director of Public Prosecutions v Harri_s [2013] TASCCA 5 and Director of Public Prosecutions v CSS [2013] TASCCA 10. In Braslin and Cowen, a case referred to by the sentencing judge, Porter J reviewed the range of sentences for aggravated armed robbery and armed robbery in the last decade or so prior to that decision. Porter J said, at [26]:

"For aggravated armed robbery and armed robbery there are 16 sentences of between three and six years, mostly in the lower end of that range, and almost invariably involving commercial premises, relatively large sums of money, and offenders with significant criminal histories."

Porter J's review in Braslin and Cowen was referred to by Evans J in the following passage from his judgment in Burns at [56]-[57]:

"Sentencing ranges for the crime of aggravated armed robbery in this jurisdiction are detailed in Prof Kate Warner's text, Sentencing in Tasmania, 2nd ed. Table 22 at 332 shows that for the period 1990 - 2000 for a single count of aggravated armed robbery the median sentence was 18 months' imprisonment. Table 24 at 335 deals with multiple counts of the same crime for the same period. It shows that the median sentence for two counts was two years and nine months, and this increased to three years for all sentences in relation to two or more counts.

In Braslin and Cowen v Tasmania [2010] TASCCA 1, Porter J at [26] refers to his assessment of the sentences imposed in this jurisdiction for aggravated armed robbery and armed robbery since the abovementioned period. His Honour said of his analysis that the outcome was somewhat inconclusive, but might suggest that a more punitive approach to this type of crime had been taken in the most recent decade, compared to the decade that preceded it. In the same decision at [21], his Honour said of statistics with regard to sentences for the two crimes mentioned, that whilst showing nothing dramatic, they bear out an increase of some reasonable proportion in the number of cases of aggravated armed robbery and armed robbery coming before the Court".'"

1. In Bartle at [25], Brett J observed as follows:

"25 It is doubtful that past sentencing in Tasmania for armed robbery has established a tariff (see Director of Public Prosecutions v Harris [2013] TASCCA 5, per Wood J at [15]-[18]). However, it is possible to discern from past sentences a number of "unifying principles" applicable to sentencing for armed robbery and, in particular, armed robbery of a retail premises such as a pharmacy. Those cases suggest that there are a number of factors which, if present, make such a crime particularly serious and require, in sentencing, an emphasis on general deterrence and denunciation. "

1. I accept the submission made by counsel for the State, Mr Dennison in his most helpful written outline, that a number of the factors adumbrated by Brett J, (or at least factors analogous to those factors), are present in the case at hand. These were recognised by the learned sentencing judge. The crime was committed using a knife, the appellant wore sunglasses and a balaclava as a disguise, the crime has had a significant impact on the proprietor, the crime was committed against a milk bar which is a form of retail premises particularly vulnerable to such crimes because of the nature of its cash business, and customers were present.

1. Having regard to what this Court had to say so recently in Streets (above) and Bartle (above), I am not persuaded in the present case that, in accordance with the traditional formula set out in House v The King [1936] HCA 40; (1935) 55 CLR 499, the appellant has established that by reason of its severity, the sentence imposed on him is "unreasonable or plainly unjust" so as to give rise to the inference that there has been a failure by the learned sentencing judge to properly exercise his discretion. Even if there was a recognised range of sentences for the crime of aggravated armed robbery so as to provide a context for the appellant's attempt to commit that crime, as Underwood J (as he then was) observed in Inkson v The Queen [1996] TASSC 13; (1996) 6 Tas R 1 at [47], having regard to the range of sentences imposed for a crime does not mean that every sentence must fall within that range.
2. As to the appellant's youth, I adopt with respect the succinct statement of principle of Pearce J in Kirkwood v Tasmania [2017] TASCCA 7 at [9], albeit that case involved an offence against s 170 of the Criminal Code. His Honour observed that for a grave crime any entitlement to lenience arising from the appellant's age and the prospect of his reform is to be subordinated to the dominant sentencing considerations of general and specific deterrence, denunciation, punishment and vindication of the victim. I regard the attempted aggravated armed robbery of a milk bar as a grave crime and, as was submitted by Mr Dennison, one against people and not just property. Whilst I understand the submissions to the contrary made by counsel for the appellant, Ms Monk, I agree in the circumstances of this case with the learned sentencing judge's observation that not a great deal would have been added in terms of seriousness if the appellant had made off with some money. I should add that I do not take his Honour by that remark to in any way suggest that the appellant was to be sentenced for the completed and more serious crime of aggravated armed robbery. His Honour did not err in the approach he took. That is reflected in the head sentence of two years and six months which was in my view not inappropriate for the crime of attempted aggravated armed robbery.
3. In my view the learned sentencing judge also made appropriate allowance for the appellant's age as well as for his lack of any significant or relevant prior convictions by suspending almost one third of the sentence he imposed. Moreover, the head sentence reflects an adequate discount for the utilitarian benefit to the State of the appellant's plea of guilty in the face of overwhelming evidence against him.
4. I am also of the view that his Honour made proper provision for the appellant's prospects of rehabilitation by allowing the maximum possible eligibility for parole. The appellant's demonstrated motivation to rehabilitate himself by attending alcohol and drug counselling could not, in my view, have justified a wholly suspended sentence or a greater portion of the sentence to be suspended.

1. On 3 October 2017 an order was made dismissing the appellant's appeal with an indication to the appellant that the reasons for doing so would be published at a later date. These are my short reasons for joining in the making of that order.

1. On 19 June 2017, the appellant pleaded guilty to the crime of attempted aggravated armed robbery. On 26 June 2017, he was sentenced by Pearce J to a period of imprisonment of two years and six months, with nine months suspended for three years, and with a non-parole period of one half of the actual term of imprisonment. The sole ground of appeal is that the sentencing judge erred by imposing a sentence that was manifestly excessive in all the circumstances. For that appeal ground to succeed the Court must be satisfied that the sentence is unreasonable or plainly unjust, or so manifestly wrong that it could only be the result of some undefinable error in the exercise of judicial discretion: see Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8], per Pearce J.

1. The sentencing judge summarised the relevant facts as follows:

"At about 7 am on Sunday, 23 April 2017, he and a young female associate went to a milk bar in Acton, in upper Burnie, near where she lived. They each took a 30 cm kitchen knife from her home. He wore sunglasses and tied a balaclava around his head which covered most of his face. Inside the milk bar the male business proprietor was behind the counter. Customers were also present. After walking in, the defendant raised the knife to head height and aggressively shouted a demand for money from the proprietor. The proprietor refused and walked towards the defendant who fled, followed by his companion. They were observed by witnesses and caught on CCTV and quickly found by the police."

1. The appellant was relatively young at the time of the offending, being 22 years old. He had no prior convictions of any relevance. He had a dysfunctional upbringing and used illicit drugs from a young age. The appellant has two children from a former relationship and has litigated to obtain access to those children. He has a current, supportive partner with whom he has a newborn baby. He made admissions to the police and pleaded guilty at an early stage. The attempted robbery was abandoned at the first sign of resistance by the victim.

1. As counsel for the respondent contended, there were several aggravating features to the crime. They were:
   • it was premeditated;
   • a balaclava disguise was used;
   • a weapon, being a knife, was used;
   • the crime was committed at commercial premises when they would be expected to be, and were, frequented by the public; and
   • there was a significant victim impact.

Sentencing for armed robbery and aggravated armed robbery

1. Counsel for the appellant concedes that in recent years sentences for armed robbery have increased predominantly due to a need for general deterrence in light of the prevalence of the crime. It is also accepted that caution is needed in having regard to previous sentences as setting a range or tariff, given the wide range of possible circumstances. Nonetheless, counsel contends that the factual circumstances of the crime place it "at the lower end of the scale". Counsel submits that the appellant may have been sentenced more leniently. She drew attention to sentencing for a similar crime at the same milk bar. That crime occurred some six weeks after the crime in the instant case. In that other matter of Evans (12 September 2017), the offender was sentenced to 15 months' imprisonment with effect from 18 July 2017, with the balance of the time after the date of sentencing suspended for two years, plus 120 hours of community service. Counsel submits that a sentence of that type should have been imposed on the appellant.
2. Counsel for the respondent points out that the crime of aggravated armed robbery has been viewed by the Court as a very serious crime in which general deterrence and denunciation play an important role.

1. The sentencing judge found that not a great deal would have been added to the seriousness of the crime had the appellant completed the crime and made off with money. Counsel for the appellant takes issue with that finding and contends that completion of the crime can involve intimidating and frightening behaviour. This overlooks the fact that there was intimidating and frightening behaviour in the attempt. It has been held that no special consideration should be given to the failure to complete the crime when the Court has considered attempts to commit similar crimes: Donoghue (7 August 2012), and Oakley (11 February 2013), Crawford CJ. See also Evans (above) where Porter AJ described the failure to complete the crime as "of no great significance". It must be borne in mind that the failure to complete the crime did not occur because of any voluntary act of the appellant, but because of the resistance of his victim.

1. The sentence given by his Honour was a firm response to a very serious crime. It was not manifestly excessive but an appropriate outcome, given the circumstances of the crime. Failure to suspend a greater part of the sentence does not make it manifestly excessive. The fact that other youthful offenders may have been given suspended sentences for similar crimes does not mean that the current sentence was plainly unjust or manifestly wrong. As Estcourt J has pointed out, the sentencing judge made allowance for the appellant's age and lack of prior convictions by suspending almost one third of the sentence he imposed.

1. For the foregoing reasons I joined in dismissing the appeal.