Criminal Law - Sentence - Sentencing orders - Non-custodial orders - Suspended sentence of imprisonment - General principles - Aggravated robbery - Whether sentences manifestly inadequate - Whether considerations of deterrence, punishment and denunciation outweigh rehabilitation prospects.

Wood v Samuels (1974) 8 SASR 465; Elliott v Harris (No 2) (1976) 13 SASR 516; Latham [2000] WASCA 338; (2001) 117 A Crim R 74; Jones v Fleming [1957] Tas SR 1; Lahey v Sanderson [1959] Tas SR 17; Attorney-General (Tas) v Blackler (2001) 121 A Crim R 465; R v McInerney (1986) 42 SASR 111, referred to.

First and Second Respondent: Butler McIntyre & Butler

Judgment Number: [2010] TASCCA 13

DIRECTOR OF PUBLIC PROSECUTIONS v JARED JOSEPH BROADBY,

1 The appeal against the sentences imposed on Brodie John Cockshutt and Shawn Anthony Woolley be allowed.

2 The sentences imposed on those respondents be quashed.

3 Having heard the parties as to the substituted sentences to be imposed on those respondents, it is ordered that each be sentenced to eight months' imprisonment from today.

4 The appeal against the sentence imposed on Jared Joseph Broadby be dismissed.

DIRECTOR OF PUBLIC PROSECUTIONS v JARED JOSEPH BROADBY,

1 Each respondent was convicted on his plea of guilty to a charge of aggravated robbery and sentenced to eight months' imprisonment, the whole of which sentence was suspended on condition that he, for a period of three years, was of good behaviour and committed no offence which involved an act of actual violence. The Director of Public Prosecutions has appealed against each sentence on the grounds that it was manifestly inadequate and failed to give sufficient weight to general deterrence, punishment and denunciation, or to the criminal antecedents of each respondent.

2 The particulars of the charge of aggravated robbery to which each respondent pleaded guilty are:

"BRODIE JOHN COCKSHUTT at Sandy Bay in Tasmania on or about the 5th day of June 2009, whilst in the company of Jared Joseph Broadby and Shawn Anthony Woolley, robbed Xiao Bei Chen of a handbag and its contents and caused bodily harm to the said Xiao Bei Chen, namely grazing and scratching her to the right knee and right elbow, AND JARED JOSEPH BROADBY and SHAWN ANTHONY WOOLLEY ABBETTED the said Brodie John Cockshutt to so rob Xiao Bei Chen, AND IN ADDITION JARED JOESPH BROADBY AIDED the said Brodie John Cockshutt to so rob Xiao Bei Chen by punching Jun Meng in the face when she came to the assistance of the said Xiao Bei Chen."

3 The respondents were sentenced by Tennent J on 24 June 2010. Her Honour's comments when passing sentence relevantly include the following:

"At around 6.30pm on 5 June 2009, two young female Chinese university students were walking in Grosvenor Street, Sandy Bay. The accused had just got out of a van. They walked towards the two young women and passed them. They then turned and ran up behind them.

Mr Cockshutt grabbed at a shoulder bag one of the girls had. She resisted and fell down. He then dragged her along the footpath for a few metres until the strap on her bag broke. He then ran with the bag back to the van. Mr Broadby and Mr Woolley, had been following behind while Mr Cockshutt attempted to get the handbag. The second girl went to the aid of her friend. Mr Broadby punched her to the side of her face and then ran with Mr Woolley back to the van.

The three men were subsequently identified by police and interviewed. Mr Broadby and Mr Woolley denied even being in Sandy Bay, while Mr Cockshutt did not recall going there. None admitted involvement in the attack.

Both girls suffered relatively minor physical injuries. However, both are now very wary of being out at night and this cowardly attack has scared them badly. The stolen handbag which contained identifying details of both girls has never been recovered. It contained house keys and a phone.

I will deal with the personal circumstances of each offender individually.

Cockshutt

Mr Cockshutt is 21 years old. At the time of this incident, he was on bail in respect of another charge of assault arising from an incident, also in Sandy Bay, which occurred in March 2009. The victim of that assault was a young Singaporean student. He was among a group of 4 who attacked this student. That group included Mr Woolley and two other young men in the van with him in June 2009 who did not take part in the robbery. He pleaded not guilty to that assault but was found guilty by a jury. He was sentenced on 15 February 2010 to five months imprisonment which was wholly suspended and ordered to perform 210 hours of community service. The sentencing judge said of him then "He has some prior convictions for offences of dishonesty, but not for assault. He has never been to prison. He lives with his mother and has recently found employment. I am reluctant to send him to prison because I believe that living amongst convicted prisoners might well corrupt him, rather than resulting in any sort of reform."

This crime is said to have arisen in a period of Mr Cockshutt's life when he was drinking too much, involved with bad company and generally being unproductive. He was intoxicated at the time of the offending, although that can hardly be said to be a mitigating factor. The crime I am told was opportunistic. Any suggestion this attack was racially motivated given the incident 3 months earlier, is denied.

He now has employment and his partner is expecting a child in November this year. All outstanding court matters have been dealt with. I have been urged to take the same view taken by Blow J in February this year.

Broadby

Mr Broadby is 20 years old, single with no dependants. He is unemployed and currently completing community service following a conviction for dishonesty matters in 2009. The offending which resulted in that order occurred at about the same time as this matter. He has no prior matters for violence. He has no other outstanding matters and this is his first time in this Court. He is currently looking for work

Woolley

Mr Woolley is also 20 years old, and lives with his partner and two children at Bridgewater. He works as a woodcutter. He was significantly intoxicated on the day of this crime. His record indicates an ongoing problem with alcohol. He had not been convicted of any assaults until February this year. However, he was involved in the same matter as Mr Cockshutt in March 2009. He was sentenced this year in respect of two assaults arising out of the incident and ordered to serve nine months in prison which was wholly suspended and perform 175 hours of community service.

The three men are all criminally responsible for the attack on these students. Their roles however were different. Both Mr Cockshutt and Mr Broadby were active participants, Mr Cockshutt stealing a bag and injuring the victim in the process and Mr Broadly inflicting gratuitous violence upon the second student. Mr Woolley stood by and did nothing. He made no attempt to stop the others or help the victims.

The incident is now some 12 months old. There is no suggestion any of the men have committed any other crimes of actual violence since. The conviction of Mr Cockshutt and Mr Woolley in February this year for the earlier assault is not a prior conviction. There is no evidence this incident was racially motivated. It was an opportunistic crime committed against young defenceless females who were unfortunate to be walking where they were. Each of the men has distanced himself from associates with whom they offended in the past.

Given the ages of each of the men, their offending history, their personal circumstances and their respective roles in the incident, it is appropriate that they each be sentenced in the same way. It is also appropriate that the sentence, since it will not involve an actual custodial sentence, be one which will act as a deterrent to both these men and others who might be minded to try their hand at this sort of attack.

Mr Cockshutt, Mr Broadby and Mr Woolley, you are each convicted of one count of aggravated robbery. You are each sentenced to serve a period of 8 months imprisonment. However that term is to be wholly suspended on condition that for a period of three years you are each of good behaviour and commit no offence which involves an act of actual violence."

4 As observed by Neasey J in Burke and Cook v R A67/1976, robbery with violence is always a very serious crime. That case was a very grave example of the crime and the Court of Criminal Appeal unanimously upheld sentences of six years' imprisonment imposed on the offenders. In Moore v Tasmania; Coad v Tasmania [2008] TASSC 60, a more recent decision of the Court of Criminal Appeal, the head sentences of four years' imprisonment imposed on the two perpetrators of an aggravated robbery were not challenged in the course of an appeal against the non-parole period that was imposed. These decisions demonstrate that the upper end of the range of penalties for aggravated robbery is substantial.

5 In this case it has not been contended that the head sentences of eight months' imprisonment imposed on each respondent were other than within the range that was appropriate for crimes such as theirs, and I have no hesitation in accepting that they were within range. I refer to some aspects of their criminal conduct that warrant particular attention. Their crime was described as opportunistic. It was so described against the background that they chanced upon their victims and that there was no evidence of them pre-planning what then occurred, and this is as far as that characterisation of their crime should be taken. Security film taken of them at the Derwent Tavern establishes that less than 40 minutes before the crime they were together in a van at that tavern. The van had false registration plates. On the available evidence the only realistic explanation for the men travelling across the city to Grosvenor Street, Sandy Bay, where the crime occurred at 6.30pm on a Friday evening in winter, is that these men had trouble in mind. It must have been apparent to them that their victims were young Asian women. Indeed, it is obvious that the victims were chosen because of their vulnerability. The respondents co-operated to confront the victims. There was no hesitation on the part of Cockshutt to resort to physical violence in order to steal from one victim. There was no hesitation on the part of Broadby to resort to physical violence when the other victim came to the aid of the first victim. Without any provocation whatsoever these men co-operated in a predatory and violent attack on two vulnerable victims in a public street. This is the sort of crime that causes substantial concern in the community at large and to the vulnerable in particular.

6 The issue on which the parties differ in this case is whether it was appropriate to wholly suspend each sentence. The Director of Public Prosecutions contends that insofar as each sentence was wholly suspended it was rendered manifestly inadequate and failed to give sufficient weight to the criminal antecedents of each respondent, general deterrence, punishment and denunciation. The issue central to the outcome of this appeal is accordingly, whether the learned sentencing judge erred to the point of manifest inadequacy by wholly suspending the sentences imposed.

7 The Criminal Code, s389(3), relevantly provides that subject to the provisions of the Sentencing Act 1997, the punishment for any crime shall be such as the judge shall think fit in the circumstances of the particular case. The Sentencing Act, which consolidates the State's sentencing law, provides in s7(b) that a sentencer may "record a conviction or an order that the offender serve a term of imprisonment that is wholly or partly suspended". Legislation in this State does not specifically confine or detail the circumstances in which a sentencer may resort to a suspended sentence, although provisions of the Sentencing Act that are of general application provide some guidance. For example, s3(e) provides that a purpose of that Act is to help prevent crime and promote respect for the law by allowing courts to:

"(i) impose sentences aimed at deterring offenders and other persons from committing offences; and

(ii) impose sentences aimed at the rehabilitation of offenders; and

(iii) impose sentences that denounce the conduct of offenders."

8 Although the following passage from the decision of Walters J in Wood v Samuels (1974) 8 SASR 465, relates to the sentencing legislation in South Australia, it is also applicable in this jurisdiction. At 468 - 469, his Honour said:

"Admittedly there are no comprehensive specific criteria which tell a court when a case is one fit for a suspended sentence. But the perceived seriousness and the intrinsic character of the particular offence, and any element of persistence, can serve as important restraints on the choice of a suspended sentence. On the other hand, the likelihood that further criminal behaviour cannot reasonably be assumed is a matter which may well bring the offender within the scheme of the legislative policy which enables the rigours of a custodial sentence to be avoided ... [T]he considerations governing the choice between a custodial sentence and a suspended sentence cannot be identified by any constant ratio. The factors to be taken into account must invariably be different in the particular circumstances of each particular case."

9 When addressing considerations such as general deterrence, punishment or denunciation, it is important to keep in mind that there is a marked divergence between the views of the judiciary and the community in relation to the impact of suspended sentences. The judiciary's view reflects that of Bray CJ in Elliott v Harris (No 2) (1976) 13 SASR 516 at 527, where his Honour addressed a comment made by a magistrate who had said "I agree with the view currently prevailing in England that a suspended sentence is really no punishment at all". Bray CJ said of the comment that:

"It reveals an entirely mistaken and wrong-headed approach to the question of suspended sentences. So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant's record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment."

10 For my part, I substantially agree with the following observation made in the Tasmanian Law Reform Institute's Final Report No 11 of 2008 titled "Sentencing", at par3.3.6:

"Suspended sentences are viewed very differently by the legal system and by the general public. From the legal point of view they are the penultimate penalty. In the list of sentencing options in the Sentencing Act 1997 (Tas), they follow a sentence of imprisonment. Moreover, they are a 'substitutional sentence'. In other words, before a suspended sentence can be passed the court must be satisfied that a sentence of imprisonment and not some lesser sentence is appropriate. ... However, the public perception of a suspended sentence is entirely different. When a suspended sentence is imposed, the offender 'walks free'. The consequences of a suspended sentence appear less than a community service order, a fine or a probation order. Far from being the penultimate sanction, in the public view, it ranks as less severe than probation or a small fine."

11 Whilst suspended sentences are a most valuable sentencing option (the Law Reform Institute recommended their retention), their utility is constrained in circumstances which require that the sentencer pays particular attention to considerations such as general deterrence, punishment or denunciation, as the degree to which a sentence addresses these considerations depends largely upon the community's attitude to it.

12 In Latham [2000] WASCA 338; (2001) 117 A Crim R 74, Parker J, agreed with by Wallwork and McKechnie JJ, at 82 dealt with a submission that in that case a suspended term of imprisonment would have served the needs of deterrence. After observing that a suspended term of imprisonment was the second most serious sentencing option available to the court in Western Australia, his Honour said that:

"[31] ... the effect of such a sentence is the immediate release of the offender into the community without supervision or restriction and, unless the offender commits a further offence, [breaches a condition of the suspension of the sentence in Tasmania,] ... during the suspension period, the offender is discharged entirely from the sentence at the end of the suspension period ... In most cases a suspended sentence involves neither custodial nor coercive consequences.

[32] It is understandable, therefore, that the community's perception and the reality of this sentencing option is quite different from that of a sentence of a term of imprisonment to be served immediately ...

[33] A suspended sentence remains, nevertheless, a valuable sentencing option in some cases and, although there are no confined or restricted circumstances in which the option is available and the full range of sentencing considerations are relevant to its appropriateness or inappropriateness in a particular case, it remains a sentence more often likely to commend itself as appropriate where considerations justifying special leniency or the special encouragement of rehabilitation are strong.

[34] While it should not generally be concluded that the imposition of a suspended term of imprisonment will have little or no general deterrent value, the nature of this punishment involves inherent limitations on its value as a general deterrent. Where the conduct of the offender is serious and warrants imprisonment and a clear general deterrent element in the sentence is called for, a suspended term of imprisonment may well be considered inappropriate."

13 The respondents are young men. When sentenced, two were aged 20 and one aged 21. The relative youth of each respondent was a significant factor to be taken into account when assessing whether all or part of his sentence of imprisonment should be immediately effective. The youth of an offender, particularly a first offender, frequently persuades a sentencer to suspend a sentence and thereby place more emphasis on rehabilitation than general deterrence, punishment and denunciation. When youthful offenders are dealt with in this jurisdiction, the following authorities on sentencing youths are invariably considered and frequently cited.

14 Jones v Fleming [1957] Tas SR 1 dealt with an appeal against the severity of a sentence of three months' imprisonment imposed upon a 19 year old who stole two gallons of petrol. In the course of allowing the appeal, Burbury CJ said, at 4 - 5:

"The modern approach to the juvenile offender as recognized by the courts implies the realization that a juvenile offender should be given every reasonable opportunity to reform, rather than that he should be exposed to the possible corrupting influence of other inmates of the gaol and thereby be set on a path of crime ...

In the case of a young man of this age who has had no previous conviction involving dishonesty or previous conviction of a serious crime, he should not be sent to gaol unless the nature of his crime is such that it is clearly the duty of the court to give effect to the deterrent aspect of punishment as outweighing other factors."

15 Lahey v Sanderson [1959] Tas SR 17 was an appeal against a total sentence of nine months' imprisonment imposed upon a 20 year old for three convictions for stealing car accessories over a period of several months. In the course of explaining why he allowed the appeal, Burbury CJ said, at 21:

"It is because the public interest is best served if an offender is induced to turn from criminal ways to an honest living that a court rarely sends a youth to gaol except in the case of crime of considerable gravity (such as a crime involving violence), or in the case of a persistent offender who has shown himself not amenable to disciplinary methods short of gaol. The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed. There has accordingly been a universal acceptance by the courts in England, Australia, and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed. It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility. With that I respectfully agree."

16 Whilst I appreciate the reality of and the significance to the sentencing process of the community's perception that an offender who receives a suspended sentence "walks free", I am in no doubt whatsoever that when such a sentence is appropriate it is the community that benefits. As explained by Crawford J (as he then was) and Slicer J in Attorney-General (Tas) v Blackler (2001) 121 A Crim R 465, at 470 par[15]:

"If leaving out of prison a young person who has not previously appeared in a court for offences results in the offender not re-offending, then the public will have been well served by the sentence which was selected. If, in breach of a sentence of imprisonment suspended on a condition of good behaviour, the offender re-offends within the period of suspension ..., then the offender is likely to serve the imprisonment which was suspended, in addition to suffering punishment for the subsequent offence or offences. In such a case, what the public may regard as a 'real' punishment, has not been avoided."

17 Although the passages cited above refer to youthful offenders, much the same considerations apply to mature first offenders. After all, they can claim in aid a longer period of proven good behaviour than youthful first offenders. Nonetheless, one of the considerations that bears on a sentencer's assessment of whether or not all or part of a sentence of imprisonment should be immediately effective is the age of the offender.

18 In R v Maher and Rogers [1962] Tas SR 25, Burbury CJ drew a distinction between the ordinary run of crimes involving dishonesty (particularly if it is a single escapade) and a youth convicted of multiple crimes extending over a period, and said:

"... of course the crimes of which a youthful offender is convicted may be so serious that the court may have a clear duty to impose a gaol sentence as a deterrent both to the offender himself and to others who may be minded to commit similar crimes."

19 Whilst each respondent, to markedly varying degrees, had prior convictions, no respondent had spent any significant time in custody when sentenced. Before considering their antecedents and records, I turn to one matter. In the course of sentencing the respondents her Honour correctly commented that the convictions of Cockshutt and Woolley for assault in February 2010, in respect of an incident on 7 March 2009, were not prior convictions. They had not been convicted in respect of that incident when they committed the aggravated robbery on 5 June 2009, for which they were being sentenced. Nonetheless, a sentencing court looks at all relevant aspects of an offender's behaviour up until the time of sentencing. The sentencer is not precluded from taking into account in an appropriate way, and for appropriate purposes, an offence in respect of which there has been a conviction between the time of the offence charged and the time of the sentence, whether that offence was committed before or after the offence charged. See R v McInerney (1986) 42 SASR 111, and Driver v R (1989) 97 FLR 23. As explained by Cox J in McInerney, at 124, this does not mean that a subsequent conviction will necessarily be taken into account in the same way as a prior conviction:

"Whether the offences were committed before or after the offence for which the defendant is being sentenced may make a difference in some cases. The fact that it was not a first or isolated offence, that the defendant's recent history shows a procession from one offence to another, may well be important, but the conviction itself adds a significant dimension. A conviction is a formal and solemn act marking the court's, and society's, disapproval of a defendant's wrongdoing, so that a prior offence may not assume quite the same significance as a prior offence coupled (by the time the instance offence is committed) with a prior conviction. So far as subsequent offences are concerned, they cannot justify the court in imposing a higher sentence than the instant offence intrinsically merits, but they might well lead the court to conclude that any leniency to the defendant would be misplaced. As always, of course, it will depend upon the circumstances of the particular case."

"I conclude with some observations as to the way in which and the purposes for which subsequent offences may be taken into account. The cardinal rule is that while good character may operate to reduce the sentence which the facts of the crime would otherwise attract, bad character cannot increase it. A person is not to be punished, or punished again, for crimes other than the crime for which sentence is being passed. Offences committed prior to sentence for the offence under consideration may affect the sentence in two ways. They may diminish or abrogate any leniency by reason of good character. They may, moreover, lead to a greater sentence than would otherwise be imposed, although within the proper limits indicated by the facts of the immediate crime, for the purpose of personal deterrence; the prisoner's record may indicate that greater punishment is needed to protect the public by deterring him from further crime. Where the other offences have been committed before the commission of the immediate offence, their relevance is clear in the generality of cases. The offender has committed the offence not as a first offender but as a person whose character is affected by previous offending. He must be sentenced against the background of his record: DPP v Ottewell [1970] AC 642 at 645; (1968) 52 Cr App R 679 at 681. The effect of the prior offences is more cogent if they have been the subject of conviction before the immediate offence. In such cases, the offender has committed the immediate offence notwithstanding the formal judgment and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies."

21 The following are incomplete summaries of each respondent's record of convictions. Broadby has significantly less convictions than the other respondents. I will deal with him first.

Hearing adjourned for 12 months on undertaking to be of good behaviour for that period

Fined $600 and disqualified from driving for 18 months

4 traffic infringement notice offences and 1 traffic offence

Failing to comply with the direction of a police officer

Possess open or unsealed container of liquor in a public street

Possess open or unsealed container of liquor in a public street

Possess open or unsealed container of liquor in a public street

Possess open or unsealed container of liquor in a public street

Sentenced to one month's imprisonment wholly suspended on condition that for 18 months he commit no offence of dishonesty. Fined $500.

Possess open or unsealed container of liquor in a public street

Wholly suspended sentence of five months' imprisonment. 210 hours of community service.

12 traffic and traffic infringement notice offences

Possess open or unsealed container of liquor in a public street

Disqualified from driving for three months and fined $240.

Disqualified from driving for 8 months concurrent with the above.

Failed to comply with a direction of a police officer

Fined $500, disqualified from driving for eight months cumulative on the below.

Fined $960 and disqualified from driving for 12 months

Possess open or unsealed container of liquor in a public street

Possess open or unsealed container of liquor in a public street

Unlawful possession of dangerous article in a public place

105 hours' community service and a probation order commencing 23/4/2009 for 12 months

70 hours' community service and probation commencing 18/6/2009 for 12 months

9 months' imprisonment wholly suspended on condition that he be of good behaviour for 3 years. 175 hours community service.

Three months' imprisonment wholly suspended on conditions including that he be of good behaviour for 2 years

Four months' imprisonment commencing on 9 March 2010 with the balance suspended on conditions including that he be of good behaviour for 2 years. Disqualified from driving for nine months.

29 traffic and traffic infringement notice offences since 27 December 2006 and two periods of three months disqualification from driving arising from an accumulation of demerit points.

25 In the course of sentencing the respondents, the learned sentencing judge referred to the following matters which were to their potential benefit: their pleas of guilty; the relatively minor physical injuries suffered by the two female victims; the fact that the incident was some 12 months old; the absence of any suggestion that any of the respondents had committed any other crimes of actual violence since the incident; the absence of any evidence that the incident was racially motivated; the crime being opportunistic; and each of the respondents having distanced himself from associates with whom they had offended in the past.

•

he was 21 years of age;

•

the crime was committed during a period when he was drinking too much, involved with bad company and generally being unproductive;

•

he was in employment;

•

his partner was expecting his child; and

•

all outstanding court matters had been dealt with.

•

was 20 years of age;

•

lived with his partner and two children;

•

worked as a wood cutter; and

•

had not been convicted of an assault until February this year.

•

he was 20 years of age;

•

he was single with no dependants;

•

he was unemployed but looking for work;

•

he had no outstanding court matters; and

•

this was the first occasion on which he was before the Supreme Court.

29 It is noteworthy that when Broadby committed the subject crime he breached an undertaking he gave on 25 November 2008 to be of good behaviour and not commit any offence of dishonesty. Nonetheless, when sentenced, Broadby had far fewer convictions than Woolley and Cockshutt and more importantly, he had not been involved in the incident on 7 March in respect of which they were convicted of assault.

30 The circumstances of those convictions warrant attention. Late on the night of 7 March 2009 Woolley, Cockshutt, Aaron Farrell and another youth were together in a vehicle travelling the streets of Hobart. They came upon a parked motor vehicle which they decided to steal, but were disturbed by local residents as they endeavoured to do so. They left. The owner of the vehicle, a young Asian student, was alerted to what had occurred and went to his vehicle. As he was about to drive it away Woolley and his companions returned. Woolley punched the student in the face with a clenched fist when the student refused to hand over the keys to his car. The student fell to the ground where he was punched and kicked by members of the group. A female friend of the student, who was also an Asian student, ran to his aid and Woolley punched her to the face with a clenched fist. A member of the group then stole the female's handbag and its contents, which included a mobile phone and an iPod. Neither Woolley nor Cockshutt was found guilty of a crime in respect of this theft. The theft was however a circumstance of the incident that was of relevance to their involvement. The group of offenders fled. They were intercepted by police and arrested. Woolley spent three days in custody before he was bailed. The male student suffered a chipped tooth, abrasions and contusions to the cheek and the inside of his lip. His female friend suffered a black eye and swelling around her nose and eyes. She was very upset by the incident and returned to China. She was too frightened to give evidence about the assault upon her, even via video link. Woolley pleaded guilty to charges of assaulting each student. Cockshutt was found guilty by a jury of assaulting the male student.

31 On 15 February, 2010 Blow J sentenced Cockshutt to five months' imprisonment, wholly suspended on condition that he be of good behaviour for three years, and ordered that he perform 210 hours of community service.

32 On 23 February 2010, Blow J sentenced Woolley to nine months' imprisonment, wholly suspended on condition that he be of good behaviour for three years, and ordered that he perform 175 hours of community service.

33 There are a number of broad grounds for comparing the involvement of Woolley and Cockshutt in the assault incident on 7 March and their involvement in the subject crime. On each occasion:

•

they were in the company of others, including Aaron Farrell, cruising the streets of Hobart, in effect looking for trouble;

•

there was an element of vulnerability about the victims insofar as they were young, Asian and three of those who suffered were female;

•

those involved did not hesitate to use and persist with violence until they had achieved their ends, and to use violence to prevail over rescuers;

•

although the physical injuries suffered by the victims were relatively minor, as the incidents were unprovoked and occurred in a public place, it is likely that the incidents would have a lasting impact on the victims' comfort and perceptions about safety when in public; and

•

the perpetrators manifested a cavalier disregard for the rights and wellbeing of their victims and a startling indifference to the potential criminal consequences of their conduct.

34 On 5 June 2009, some three months after the 7 March incident, Woolley and Cockshutt committed the aggravated robbery that is the subject of the sentence under appeal. At the time each was on bail on charges in respect of the 7 March incident. The commission of an offence while on bail is frequently taken as an indication of contempt for or disregard for the law, Wisnieswski v Tasmania [2007] TASSC 25, Crawford J (as he then was) par[10] and Slicer J par[34].

35 Eleven days later, on 16 June 2009, Woolley was one of a group of youths who stole a motor vehicle, and stole petrol from a service station worth $67. He also drove whilst disqualified and drove with a blood alcohol reading of .085.

36 When Woolley received the sentence that is the subject of this appeal on 24 June 2010, he had not been convicted of any offences committed subsequent to 16 June 2009. However he fell far short of being entitled to the leniency that is commonly extended to young first offenders. Over the 3½ years prior to his sentencing he had been convicted of 29 traffic offences. Over the 2½ years prior to his sentencing he had on three occasions been convicted of driving with a blood alcohol level in excess of that allowed, and on two occasions been convicted of driving whilst disqualified. The crime for which he was being sentenced involved dishonesty and violence. Of specific relevance to it were his seven convictions for crimes of dishonesty and his conviction on two charges of assault in respect of the 7 March incident. That incident was of real significance due to the similarities between it and the subject crime. When sentenced he was already subject to three suspended sentences of imprisonment.

37 The day before Cockshutt's sentencing he was convicted of motor vehicle stealing and received a sentence of two months' imprisonment wholly suspended on condition that he be of good behaviour for 18 months. Due to the closeness of this conviction to the sentencing hearing it was not included in the list of convictions that was before her Honour, which is summarised in par[23]. Her Honour was however informed of it.

38 As with Woolley, Cockshutt fell far short of being entitled to the leniency that is commonly extended to young first offenders. He had four convictions for crimes of dishonesty (this includes his conviction the previous day for motor vehicle stealing), a conviction for threatening a police officer and the assault conviction in respect of the incident on 7 March 2009. His commission of the subject crime breached the condition of a suspended sentence of one month's imprisonment imposed on him on 25 November 2008 for motor vehicle stealing. When sentenced the period of the conditional suspension of the 25 November 2008 sentence had expired, however, he was subject to two other suspended sentences, they being that imposed for assault and that imposed on the previous day for motor vehicle stealing.

39 The matters advanced in the course of the sentencing hearing referable to Woolley and Cockshutt's rehabilitation were noteworthy but not overwhelming. That they had not committed any crimes of violence since the subject crime and had distanced themselves from bad company were positive factors, as was the fact that each was in employment. However, factors such as these did not outweigh the seriousness of their crime and, in the light of their antecedents, the needs of deterrence, punishment and denunciation. Their involvement in the subject crime within three months of the 7 March incident, at a time when they were on bail on charges in respect of that incident, strongly suggests that they had taken the court's leniency for granted. A most unfortunate consequence of failing to draw the line on the lenient treatment of young offenders is that they, and others who are like minded, may believe they can continue to offend with impunity. I have no hesitation in concluding that when sentenced, Woolley and Cockshutt had passed beyond the point where it was appropriate to subordinate considerations of deterrence, punishment and denunciation to the consideration of their rehabilitation. In consequence the total suspension of the terms of imprisonment imposed on them rendered the sentences manifestly inadequate. I would quash these sentences and would (as requested by counsel) hear the parties before imposing substituted sentences. [Following this hearing it was ordered that Woolley and Cockshutt each serve an immediately effective sentence of eight months' imprisonment.]

40 I take a different view in relation to Broadby. He has fewer convictions than Woolley or Cockshutt. He has no conviction for a crime involving violence and no conviction for any involvement in the incident on 7 March. That three of his four convictions for offences involving dishonesty were committed during the same month as the subject crime is indicative of a short period of out of character criminal conduct. I do not overlook the fact that his commission of these offences and the subject crime breached an undertaking he gave on 25 November 2008 to be of good behaviour and not commit any offence of dishonesty. However, I am not satisfied that Broadby had passed beyond the point where it became inappropriate to afford priority to rehabilitation when sentencing him. I am not persuaded that the sentence imposed on him was manifestly inadequate or that in imposing the sentence her Honour failed to give sufficient weight to his antecedents or countervailing sentencing considerations. I would dismiss the appeal against his sentence.

41 For the purposes of this appeal, Mr McTaggart, counsel for Woolley, provided the Court with comprehensive and informative submissions on the construction of the Criminal Code, s402(4A), citing authorities on the same or similar provisions in other jurisdictions. To this point I have not found it necessary to consider the construction of that provision as there is no dispute or suggested ambiguity about its impact on a decision of this Court to quash a sentence. As to such a decision, the plain meaning of the provision is that the Court must not take into account the fact that its decision may mean that the offender is again sentenced for the crime. Dependent upon how the re-sentencing hearing proceeds, it may become necessary to address the impact of this provision on the substitute sentences to be imposed by the Court.

DIRECTOR OF PUBLIC PROSECUTIONS v JARED JOSEPH BROADBY,

42 I agree with the reasons for judgment of Evans J and with the proposed orders.

DIRECTOR OF PUBLIC PROSECUTIONS v JARED JOSEPH BROADBY,

43 I have had the advantage of reading the reasons for judgment of Evans J. I agree with those reasons and the proposed orders.