CITATION: Bartle v Tasmania [2016] TASCCA 18

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Appellant alleging sentence manifestly excessive - Pleaded guilty to one count of armed robbery - Robbery of pharmacy using knife - Sentence of three years' imprisonment with parole eligibility after half not manifestly excessive.

Streets v Tasmania [2016] TASCCA 13, considered.

Judgment Number: [2016] TASCCA 18

1. The appellant, Stewart Bartle, was sentenced in April 2016 to three years' imprisonment on a charge of armed robbery, with a non-parole period of 18 months. He appealed to this Court against that sentence. On 26 September 2016 this Court heard and dismissed his appeal, deferring the publication of the reasons for its dismissal until a later date. My reasons for joining in the order dismissing the appeal correspond with those stated by Brett J.

1. I agree with Brett J. My reasons for joining in the order dismissing the appeal are the same as those given by his Honour.

1. At 7.02pm on Friday, 30 October 2015, the appellant committed an armed robbery of a pharmacy in the Kingston Shopping Centre. He was arrested by police for the crime later that night and pleaded guilty to a charge of armed robbery in the Magistrates Court less than one month later. He was sentenced by Tennent J on 21 April 2016 to three years' imprisonment, with a non-parole period of 18 months. Her Honour also made a probation order for a period of 12 months, to commence on the appellant's release from custody.
2. The appellant has appealed to this Court against that sentence. The sole ground of appeal is that the sentence imposed is manifestly excessive.
3. The appeal was heard by this Court on 26 September 2016. After hearing from the appellant's counsel, the Court made an order dismissing the appeal. These are my reasons for joining in that order.

1. At the time that he committed the crime, the appellant was 42 years of age, employed casually as a deckhand for an abalone diver, and lived at home with his mother. He was single with no children. He had little relevant criminal history, and had never before committed a crime of this nature.
2. The appellant told police that, for some time, he had been suffering from back pain, and the pain made his work as a deckhand difficult. He was not able to access prescription pain relief because he had previously been on the methadone program. Accordingly, he was in the habit of buying morphine illicitly. He had developed an addiction to morphine.
3. On the day of the crime, he had been engaged by his employer to work the next day. He was told that, somewhat unusually, he would be working for two divers. This meant that his work would be more intense than usual. He did not have any morphine and did not have sufficient money to purchase some in accordance with his usual practice.
4. According to his explanation to police, he therefore made the decision to obtain the drugs he needed by committing a robbery of a local pharmacy. Shortly before 7pm, he drove, in his own vehicle, to the pharmacy at the local shopping centre. He took with him a green plastic shopping bag, a balaclava, a knife with a serrated edge blade about 15cm long, and a pair of gloves. He was wearing two hooded jackets.
5. He parked his car in the car park near the pharmacy. He entered the store carrying the knife, the gloves and the bag. He was wearing the balaclava on his head, and as he went into the store, he pulled the balaclava down over his face, so that it acted as a disguise. He walked directly to the dispensary area holding the knife in his right hand and the green bag in his left hand. He exposed the knife to the 25 year old female pharmacist and said to her, calmly and quietly, that he wanted her to put "all your oxy's, MS Contin and methadone" in the bag. She told him that she did not want any trouble and he responded by saying, "Fill it up quick and there won't be any trouble." The pharmacist then went to the safe at the back of the dispensary area. The appellant followed her, still holding the knife. He handed her the bag and she started to place drugs from the safe into it. As she was doing so, the appellant was saying to her, "Quick, quick, quick."
6. After a few seconds, the appellant told her that that was enough and pulled the bag from her hands. He then leaned across her, and she leaned back with her hands in the air, and he took more drugs from the safe. He then immediately left the pharmacy, got into his car and drove away.
7. The appellant was in the pharmacy for less than one minute. The balaclava remained over his face for the entire time.
8. Also present in the pharmacy during the robbery were three other female staff members, one aged 16 and one aged 14, and two male customers.
9. The property stolen by the appellant during the armed robbery was a quantity of morphine-based pain relief medication. It had a retail value of approximately $300.
10. The appellant was located by police at his home shortly after 11pm that night. Police were able to locate the appellant at his home because they located his car parked outside his house, and the car was identified as the one used in the robbery from a description given by a witness who saw the appellant leave the pharmacy. Police located and seized all of the stolen medication, except for three tablets, which had already been taken by the appellant.
11. As noted above, the appellant pleaded guilty at a very early opportunity. He subsequently expressed remorse and wrote a letter of apology to the pharmacy staff. At the sentencing hearing, it was accepted by the prosecution that the appellant had demonstrated genuine remorse.
12. The learned sentencing judge was presented with a victim impact statement prepared by the pharmacist who had been confronted by the appellant. The statement eloquently describes her fear, sense of helplessness and vulnerability, and concern about her safety and the safety of her fellow workers, experienced by her during the course of the crime. It also describes the ongoing emotional impact that the crime has had, and continues to have on her. She has been unable to work to the same extent as she had been working before the crime, and this has led to diminished income. She is having ongoing counselling. Her Honour accepted that there had been impact of the nature described by the pharmacist. There was no challenge to her Honour's conclusion in that regard, and the consequences described in the victim impact statement are consistent with those that would reasonably be expected after a traumatic incident of the nature of the crime in this case.

1. As noted before, this was the first time that the appellant had committed such a crime. Apart from traffic offences, the two matters of significance in his criminal history are convictions for an aggravated burglary and stealing committed in 2008, in respect of which a community service order was imposed, and a conviction for the offence of evading police in 2011. The appellant was sentenced to a short period of suspended imprisonment in respect of the latter offence.
2. The appellant's upbringing and general background is unremarkable. In the pre-sentence report presented to her Honour, the appellant described a normal upbringing. He has a close relationship with his immediate family and they are supportive of him. He has a good industrial record, having worked for a variety of employers, including, for a period of time, as a member of the Australian Navy.
3. The information presented to the learned sentencing judge suggested that the appellant developed a problem with drug use after he had reached the age of 30. The pre-sentence report notes that he has been addicted to morphine for the last 12 years. However, he has been held in custody in respect of this matter since 25 February 2016, and claimed that during the period in custody prior to sentencing, he has been able to cease his morphine use altogether. He was assessed by the pre-sentence report author as requiring a medium level of intervention from the probation service.

1. After noting all of the pertinent aspects of the circumstances of the crime, the impact of the crime on the pharmacist, the circumstances of the appellant and the appellant's response to the crime, her Honour said:

"The crime you committed was a serious one with disastrous consequences for the pharmacy staff. I accept you are remorseful and that the reason for the robbery was as you told police. You have pleaded guilty at a very early stage and relieved the victims of your robbery from the need to be involved in a trial. You have now been in custody since 25 February 2016.

The nature and circumstances of the crime notwithstanding the mitigating factors I have identified dictate that an immediate custodial sentence must be imposed. That must be imposed to reflect the need for general deterrence in particular."

1. 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 Harris [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 his submissions, the appellant's counsel referred to a number of individual sentences for armed robbery and aggravated armed robbery, and argued that by comparison with those cases, the sentence imposed by the learned sentencing judge was manifestly excessive. He relied in particular on the mitigating factors applicable to this case, including the appellant's early plea of guilty, his demonstrated remorse and his lack of prior convictions for a crime of this nature.
2. In respect of the relevance of the cases referred to by counsel, I pointed out in Daley v Tasmania [2016] TASCCA 10 at [42] that there is generally little to be gained by an exercise which simply compares one case with another, with a view to attempting to draw a conclusion with respect to comparative leniency or harshness from the exercise. These comments were repeated and endorsed by Pearce J in Streets at [24], and I reiterate those comments:

"... apart from crimes in respect of which a sentencing range can appropriately be established, an appeal court will have regard to comparable decisions for the purpose of identifying 'unifying principles'. However, there is little to be gained by embarking on what is in reality a misconceived quasi-mathematical exercise of comparing individual sentences, adjusting for aggravating or mitigating factors which may or may not appear in the sentences under comparison, weighting same and then arriving at a position that a sentence was too high or too low by reference to such comparison. Such a process cannot possibly account for the variation in the multiple individual factors and their relative significance that appear in each case, or the need and reality of an individualised approach by the sentencing judge. Ultimately, sentencing is an intuitive process in which the discretion is exercised within wide parameters, proportionate to the circumstances of the offence and the offender in the particular circumstances of the case."

1. However, comparative decisions are relevant in order to enable unifying principles to be discerned, or to determine whether a range of sentences can be established (see Hili v The Queen [2010] HCA 45, 242 CLR 520; Barbaro v The Queen [2014] HCA 2, 253 CLR 58 at [40]- [41]; Connelly v Tasmania [2015] TASCCA 15). 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. A number of those factors are present in this case. They include:

(a) The crime was committed using a knife, which was used to personally threaten the staff member. Whilst the knife was not brandished or moved around aggressively, and the appellant did not express his threats overtly, he held the knife in his hand so that it was visible to the staff member throughout the course of the robbery, and whilst he was in close physical contact with her. The presence of the knife, its use by the appellant, and his conduct generally, clearly implied a threat to the personal safety of the staff member. The appellant demonstrated a firm resolve throughout the robbery to achieve his purpose, and clearly stated that there would be no trouble provided he received co-operation. The threat implicit in this statement was that the knife would be used if he did not receive co-operation. He used the weapon and the implied threat to overbear any potential resistance from the staff member, and to achieve power and dominance over her.

(b) The sense of threat, helplessness and fear experienced by the staff member was likely to be compounded by the close physical proximity of the appellant. At one stage, he leaned over her whilst accessing further drugs from the safe.

(c) He wore the balaclava as a disguise. It covered his entire face during the course of the robbery. This also would have compounded the fear and sense of threat experienced by the staff member.

(d) The crime, understandably, has had a significant impact on that staff member. There was no evidence before the learned sentencing judge as to the impact on any other member of staff or customer in the store at the time, although the pharmacist, in the victim impact statement, does speak of the fact that the business had to close for a period of time, which resulted in an economic impact to her employers. She also describes how her employers have had to give up their own time, "to support all those affected". This suggests that the impact has extended beyond her to others who were in the store at the time.

(e) The crime was committed against a pharmacy, which is a form of retail premises particularly vulnerable to such crimes because of the nature of its stock. It was argued by the appellant's counsel that the appellant's underlying addiction to prescription pain relief, and the fact that his motive in committing the offence was to obtain the drugs to provide relief from pain so that he could work the next day, were mitigating factors. I reject that submission. On the contrary, the fact that the appellant decided to commit the offence against the pharmacy in order to obtain drugs, highlights the vulnerability of such premises to crimes of this nature, and increases the need for general deterrence (see Streets (above) at [17]).

(f) The crime was committed in the early evening, which is a time during which it might be expected that members of the public would be in the premises, but also a time when staff might be expected to feel more vulnerable than otherwise.

(g) The crime was premeditated and the subject of some preparation. The appellant's counsel submitted that the crime should be regarded as having been committed on the spur of the moment and without any real premeditation because it took place very shortly after the appellant had decided he would commit the crime. Although the appellant may have acted on his decision within a relatively short time, I am unable to agree that it should be characterised as submitted by counsel. The appellant clearly contemplated that he would need to disguise himself and be able to exert sufficient threatening force to overbear any resistance he might meet from staff members or others. Hence, he took with him the tools necessary to meet those needs, including his balaclava and the knife. It is true that he did not think about, or if he did, ignored the risk, which arose from the use of his own motor vehicle which, as events transpired, was an easy path to his identification. However, this example of ineptitude does not detract from the fact that by taking with him the weapon, disguise and other equipment, he demonstrated "a calculating mind weighing up the risks of detection before embarking on a crime enterprise" (see R v McFarlane [1993] TASSC 161; (1993) 2 Tas R 201 per Cox J (as he then was) at 204). The existence of premeditation emphasises the weight to be placed on general deterrence and denunciation (see R v Tait and Bartley (1979) 24 ALR 473).

1. It is accepted that there were a number of mitigating factors which were relevant to the exercise of the sentencing discretion. The appellant had no prior convictions for a crime of this nature. He had demonstrated genuine remorse, including by his written apology to his victims, and his plea of guilty at a very early opportunity. The plea of guilty was not only relevant because it manifested remorse, but it also had the consequence that the staff members and other witnesses would not have to give evidence in Court. It was accepted by the learned sentencing judge that the appellant had stopped his used of morphine whilst in prison, and that he had strong family support. Whilst her Honour concluded that the appellant would need support on his release in order to remain drug free, there was clearly a basis to conclude that the factors relevant to the appellant's personal circumstances boded well for his rehabilitation.

1. Her Honour's sentence represented a strong response to this crime. However, notwithstanding the mitigating circumstances, the crime was a serious example of armed robbery and deserved significant punishment. Armed robbery is a crime against people, notwithstanding that it also involves property. By definition, it involves threatened or actual violence. The threat and trauma to which victims are exposed, more often than not, result in devastating long term consequences, irrespective of the use or extent of actual physical violence. It is a crime which is susceptible to general deterrence because it invariably involves a degree of forethought and planning. There is a need for the courts to denounce such conduct in the strongest terms. In this case, the use of the knife, the actual impact on the staff member, and the other serious aspects of the crime referred to above, constituted particularly cogent sentencing considerations. I am unable to infer error from the severity of the sentence. The sentence was not manifestly excessive nor "unreasonable and plainly unjust".
2. For those reasons, it was appropriate that the appeal be dismissed.