Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Single count of aggravated armed robbery - Sentence of two years' imprisonment with parole ineligibility period of 12 months, cumulative with other short sentences - Whether sentence manifestly inadequate - Gunpoint robbery of female staff of country roadhouse.

Braslin and Cowen v Tasmania [2010] TASCCA 1; Crosswell v Tasmania [2012] TASCCA 1; Director of Public Prosecutions v Burns [2012] TASCCA 11; Director of Public Prosecutions v Harris [2013] TASCCA 5, considered.

Judgment Number: [2013] TASCCA 10

1. Respondent sentenced to three years' imprisonment with effect from expiration of sentences imposed on him by magistrates on 29 January 2013 and 8 May 2013.

1. Respondent not to be eligible for parole until he has served 18 months of that sentence.

1 I have read the reasons of Pearce J in draft form. I agree with those reasons, and with the orders he proposes.

2 I have had the opportunity of reading the draft reasons of Pearce J. I agree with those reasons and the orders he proposes.

3 The respondent, CSS, pleaded guilty on 29 May 2013 to one count of aggravated armed robbery. He was sentenced by Evans J to two years' imprisonment cumulative to sentences he was already serving, with eligibility for parole after having served half of the sentence.

4 The Director of Public Prosecutions appeals the sentence. The sole ground of appeal is that the sentence is manifestly inadequate.

5 The error asserted by the appellant in this case is of the second kind referred to in House v R [1936] HCA 40; (1936) 55 CLR 499, that is, that the sentence imposed by the sentencing judge is "unreasonable or plainly unjust". In House, Dixon, Evatt and McTiernan JJ said at 505:

"It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

6 A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion; Lowndes v R [1999] HCA 29; (1999) 195 CLR 665. The sentencing process does not lead to a "single correct answer arrived at by some process admitting of mathematical precision"; Pearce v R [1998] HCA 57; (1998) 194 CLR 610 at 624 [46]. A range of legitimate outcomes is inevitable, Hili v R [2010] HCA 45; (2010) 242 CLR 520 per Heydon J at [74]. Sentencing judges should be "accorded a wide measure of latitude"; Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. As was pointed out by McHugh J in Everett v R [1994] HCA 49; (1994) 181 CLR 295 at 306:

"Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task. What is the range in a particular case is a question on which reasonable minds may differ. It is only when a Court of Criminal Appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence."

And as was said by Gaudron, Gummow and Hayne JJ in Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 605 [58]:

"... appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons".

7 The notions of manifest excess and manifest inadequacy were reviewed in Hili at 538 [59]. What reveals manifest inadequacy or excess of sentence is consideration of all of the matters that are relevant to fixing the sentence; Hili at 539 [60]. In exercising the sentencing discretion a judge must act in a manner that is consonant with reasonable consistency in sentencing for an offence - "the treatment of like cases alike, and different cases differently"; Hili at [49]. In Elias v R [2013] 87 ALJR 895 the plurality adopted the following passage from the judgment of Gleeson CJ in Wong at [6]:

"All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency."

8 The majority in Hili accepted that the proper use of past sentences was correctly identified by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; [2010] 79 NSWLR 1 at [303] - [305] and said:

"As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added in Hili). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'." (Footnotes removed.)

9 Just before 8pm on Saturday, 12 January 2013, the respondent, in company with another man, entered the Ridgley Roadhouse. Ridgley is a small town about 15km south of Burnie. They had driven from Strahan where they had gone to collect a car owned by the other man and were on the way to Burnie. When they entered the roadhouse both men were wearing hooded tops and balaclava-style face coverings fashioned from T-shirts. The associate carried a double-barrelled sawn-off shotgun. Inside the roadhouse were two female employees, but no customers. It was just before closing time. The men confronted the two attendants and demanded money. They were shown how to open the cash registers from which the respondent removed about $500 in cash. The respondent asked about, and was shown, a safe. He unsuccessfully tried to open it. He then attempted to remove the safe entirely but could not do so because it was bolted to the ground. The associate said to one of the female attendants, "Open the safe". When she said she could not, the associate pointed the gun at her face and said, "You will open it". When she insisted that she could not do so, the men took two packets of cigarettes and left. The respondent said, "Sorry" as he left the store. The co-offender said, "Thanks for your hospitality". The men drove to Burnie. The associate used the money to purchase drugs, some of which were given to the respondent. The associate was arrested on 18 January 2013 and the firearm was found in his possession, at which time it was loaded. The respondent was arrested on 25 January 2013 after initially providing a false name, and was taken into custody. He was interviewed by the police and admitted his crime, claiming to have been under the influence of drugs.

10 The firearm belonged to the associate, who carried it for protection because he was a drug dealer. The respondent was told before entering the roadhouse that the shotgun was not loaded. Although the gun was loaded when found later, there is no other evidence to indicate whether it was loaded or not at the time of the crime.

11 At the time of the crime, the respondent was 20 years old. The learned sentencing judge was told that the respondent was the product of a difficult childhood, who, at a young age, was estranged from his father. He lived with his mother but the home was characterised by violence and drug abuse. He was abandoned by his mother when he was 11, after which he had to fend for himself. He became involved in criminal conduct and abused alcohol and drugs. He has limited literacy and numeracy and has worked only sporadically. His partner, with whom he has been in a relationship for some years, is a positive influence on him and they have a four year old child. In 2010 he re-established contact with his father, only to then learn that his father was terminally ill. This emotional blow led him to use heavier drugs such as amphetamine in increasing and more regular amounts. The escalation of his abuse of drugs led to separation from his partner and child which made the situation worse. Counselling and support through the Circular Head Aboriginal Corporation had not overcome his resort to drugs. He has expressed a desire to rehabilitate himself while in prison through drug and alcohol and literacy programmes, and there is some prospect of employment on release. His partner remains supportive of him.

12 The respondent has 14 pages of prior convictions commencing in 2006 when he was 14. In 2010 he was convicted of wounding, committed on 18 October 2008. He was then a youth and was sentenced to a suspended detention order. On 6 December 2011 he was sentenced to three months' imprisonment for interfering with a witness. He shouted and threatened to kill a female who had given evidence in a preliminary proceeding for serious driving charges against a friend of his.

13 On 5 January 2012, the respondent pleaded guilty in the Magistrates Court to 39 summary offences, including driving offences, destroying property, dishonesty offences, firearms offences, bail offences and drug offences committed during 2011. He was sentenced to six months' imprisonment, wholly suspended for 30 months. He breached that suspended sentence by committing further serious driving offences in September and October 2012. On 25 March 2013, a magistrate ordered that he serve the suspended sentence commencing when he was taken into custody in January, and imposed a cumulative sentence of four months' imprisonment, two months of which were suspended. On 8 May 2013, about three weeks before he was sentenced in the Supreme Court, he pleaded guilty to an assault committed on 29 March 2012, and was sentenced to three months' imprisonment commencing 8 May 2013, thus concurrent with the other sentences. The combined effect of those sentences was a term of actual imprisonment of eight months from 25 January 2013 with a further two months suspended. When sentenced by the Supreme Court on 29 May 2013, he was serving those sentences as to which, the Court was informed, his estimated release date was 7 August 2013.

Sentences for armed robbery and aggravated armed robbery

14 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 and Director of Public Prosecutions v Harris [2013] TASCCA 5.

15 In Braslin and Cowen, Porter J reviewed the range of sentences for aggravated armed robbery and armed robbery in the last decade or so. That review was referred to by Evans J in the following passage from his judgment in Burns at [56] - [57]:

"56 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.

57 In Braslin and Cowen v Tasmania [2010] TASCCA 1, Porter J at par[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 par[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."

16 The review conducted by Porter J was also referred to by Estcourt J and Wood J in Harris. Wood J, at [15] to [18], explained why caution is to be exercised in regarding past sentences in Tasmania for armed robbery and aggravated armed robbery as giving rise to a range or tariff.

17 Two of the appeals I have referred to offer a useful comparison to this case. Braslin and Cowan concerned two men who were found guilty at trial of a robbery of a hotel in North Hobart at night wearing balaclavas and hooded tops. One carried a firearm with which he demanded money of a female employee. Customers were also present. More than $4,000 was stolen. One of the offenders, Mr Braslin, was almost 20 at the time of the crime and had no serious prior convictions. He was sentenced to four years' imprisonment, with eligibility for parole having served half of that sentence. The court dismissed an appeal on the grounds that the sentence was manifestly excessive.

18 In Harris, the court dealt with a DPP appeal on the ground that a sentence of 3½ years' imprisonment imposed on a man with a long record for dishonesty and violence, including aggravated armed robbery, was manifestly inadequate. He robbed a video store staffed by three employees of more than $1,000 at night, wearing a balaclava and holding a loaded double-barrelled sawn-off shotgun. He made admissions and pleaded guilty. The majority of the court agreed that a sentence of 3½ years with eligibility for parole after 27 months was manifestly inadequate, and increased the sentence to 4½ years, but with the same parole eligibility period.

19 This Court has for many years emphasised the seriousness of the crime of aggravated armed robbery: R v McFarlane [1993] TASSC 161; (1993) 2 Tas R 201 per Crawford J (as he then was) at 210 and Zeeman J at 221; Walsh v R [1996] TASSC 59; (1996) 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. Armed robberies involving firearms are viewed particularly seriously; Harris per Wood J at [20]; R v Everett and Phillips (1994) 72 A Crim R 422 at 427. In words similar to those used by many judges in cases both before and since, Zeeman J stated at 441:

"Armed robbery involving the use of a firearm is a crime of increasing prevalence which informed public opinion expects to be dealt with by sentences which mark strong denunciation of that kind of activity. The nature and prevalence of robberies involving violence of the threat of violence are such that courts must make it perfectly clear to those whom might be minded to commit such crimes, be they youthful or not, that normally they will be visited with immediate and substantial terms of imprisonment".

20 The need for general deterrence is emphasised when the crime is committed by a person or persons under the influence of, or motivated by, the wish to obtain illicit drugs.

21 The prevalence of the crime is a factor repeatedly referred to in many authorities since McFarlane, most recently by Porter J in Braslin and Cowan at [19] - [26], and then by Wood J in Harris at [19].

22 One reason that aggravated armed robberies involving firearms are so serious is the potential effect on victims. In R v McFarlane, Cox J pointed out at 204 that, "An offender cannot know the physical and emotional make-up of his victims nor can he predict what effect the shock of his commission of the crime in their presence might have on them". The use of firearms is designed to prevent or overcome resistance and to facilitate the crime by fear, and is likely to have a severe impact on a victim. People confronted by a firearm in such circumstances are very likely to be terrified and traumatised. Anyone involved in the commission or planning of such a robbery must realise the risk it entails. The wearing of balaclavas, whilst designed also to conceal identity, is an additional aggravating factor because it adds to the fear of a victim; Harris per Blow CJ at [3].

23 The vulnerability of certain types of commercial premises to robbery of this type is a factor relevant to general deterrence; refer Wood J in Harris at [22]. Such premises include takeaway food shops and service stations, particularly those open at night and in more remote locations. As expressed by Crawford J in Everett and Phillips at 436: "An armed robbery of retail or commercial premises at night, involving the use of a firearm, loaded or unloaded, is a crime of considerable gravity." The employees of such businesses are entitled to the protection of the law by the imposition of deterrent sentences.

24 In this case there were a number of mitigating factors put to the learned sentencing judge. Those factors and my comments on each of them, are as follows.

(a) The respondent was 20. He was a young offender. His youthfulness is a mitigating factor and his rehabilitation assumes importance. However in the case of a grave crime such as this one, those considerations are to be balanced against the need for punishment, general deterrence and retribution, as explained by Porter J in Braslin and Cowan at [28] - [30].

(b) The respondent was not the person holding the firearm. It belonged to the co-offender. The respondent was told it was not loaded. That is not to say, however, that the firearm was not in fact loaded and so the risk of deliberate or accidental discharge remained. Further, the victims were not to know whether the firearm was loaded or not; Harris per Estcourt J at [38]; R v McFarlane [1993] TASSC 161; (1993) 2 Tas R 201 per Zeeman J at [22]. The respondent actively participated in the robbery knowing that his associate had the firearm and took advantage of the manner in which the presence of the firearm facilitated the crime. He must have anticipated how it might be used and the terror that it may cause the victims. In this case, the firearm was not only held, but was pointed at one of the victims by the co-offender while demanding that she open the safe.

(c) The respondent pleaded guilty. He is entitled to some mitigation for that. No doubt the case against him was strong, but his plea avoided the expense and inconvenience of a trial and the necessity for the victims of the crime to give evidence; Harris per Estcourt J at [40] - [41]. Given the serious psychological impact on the victims to which I will refer later, that second factor assumed some significance.

(d) The respondent had demonstrated some remorse and he made admissions to the police. The admissions to, and co-operation with the police, is mitigating; Cameron v R (2002) 209 CLR 339. Genuine remorse is a mitigating factor; Neal v R [1982] HCA 55; (1982) 149 CLR 305 per Murphy J at 314. In his sentencing remarks, the learned sentencing judge accepted that the respondent had expressed "genuine remorse". The basis of that finding is not made clear. It may have arisen from the comment the respondent made when leaving the scene of the crime, in which case it seems to me to be a very limited sign of contrition. It may be that it arose from his admissions and plea of guilty, and from a letter that the respondent wrote to the Court saying he was sorry and ashamed. The admissions and plea of guilty are mitigating factors in their own right. Care must be taken to distinguish between genuine remorse and expediency or self-pity; Whyte [2004] VSCA 5; (2004) 7 VR 397 at 403 per Winneke P. The letter written by the respondent was hardly "a spontaneous and immediate expression of remorse conducive to reform" in the sense described by Kirby J in Cameron at [65]. By its terms, it is apparent that it was written only after the respondent had been in prison for three months. Although the respondent says he is sorry and ashamed and has a desire to reform, the letter is concerned mostly with the position that the respondent now finds himself in and the effect on his family, and makes no mention of the situation of the victims.

(e) The respondent had taken some steps towards his rehabilitation while in prison.

25 The respondent had no prior convictions for similar crimes. I would give little weight to his offending as a youth except for the wounding conviction. It carries some weight, although it involved use of excessive force when defending himself by using a glass. However, he had been to prison before for other serious offending as an adult and his recent record was poor. He was not entitled to any particular leniency and could not claim that his conduct was an uncharacteristic aberration; Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57 - 58 per Mason CJ, Wilson, Deane, Dawson and Gaudron JJ. This crime manifests a continuing attitude of disobedience of the law; Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477. That is particularly so because the crime was committed while the respondent was subject to a suspended sentence and on bail. Indeed the crime was committed when he had already breached the suspended sentence and while he was on bail for offences that constituted a breach of the suspended sentence. His record of prior convictions discloses a conviction for breaching bail by failing to appear in the Magistrates Court on 21 January 2013, only nine days after the commission of this crime. Such factors are aggravating, as they demonstrate contempt for the law and for authority and an abuse of the freedom allowed by bail; see Wisniewski v Tasmania [2007] TASSC 25 in which, at [10] - [11], Crawford J, with whom Evans J agreed, followed R v Richards [1981] 2 NSWLR 464; R v Gray [1977] VicRp 27; [1977] VR 225; R v Basso [1999] VSCA 201, and R v Devine (No 2) 56/1998.

26 The impact of the crime on the victim is a relevant consideration for sentencing purposes; see Belbin v Bennett [2011] TASSC 23 per Crawford CJ. At [29] - [30] of that case, his Honour continued:

"I need not explain the matter further other than by quoting two passages (footnotes included in the text) from Professor Warner's Sentencing in Tasmania, 2nd ed, which was published prior to the enactment of s81A. At par3.406 the author said:

'Culpability is in part determined by the consequences of an offence and whether the offender intended, or foresaw those consequences, or was negligent. Acts with intended consequences will be treated more severely than acts that were unintended although foreseeable.'

'The effect of the crime on the victim is clearly important as one of the consequences of the offence (see above at para 3.406) and a penalty will be increased if there is evidence of physical (for example, Tracey Serial No 38/1987) or psychological harm. (McFarlane [1993] TASSC 161; (1993) 2 Tas R 201, Cox J at 203, Zeeman J at 221 (armed robbery causing teller stress and contributing to miscarriage); Roughley v Rigall Serial No A47/1996 (assault of a police officer with a firearm).)'"

27 In this case, the victim impact statements were given to the sentencing judge indicating that the impact of the crime on the two female employees was significant. Circumspection is to be exercised in considering the contents of such statements for the reasons explained by Crawford J in Attorney-General v B [2010] TASCCA 6 at [55] - [63]. Nevertheless, the contents were not challenged and they reveal that, in general terms, both victims suffered serious and ongoing psychological trauma and emotional harm requiring medication and treatment from a range of medical practitioners and counselling and rehabilitation services. In each case, the crime had a real impact on their health, their personal, family and social lives and their ability to undertake employment, and the effects were likely to continue for some time.

28 The degree of premeditation and planning is a relevant consideration; McFarlane per Cox J at 203. A high degree of planning suggests a considered decision to engage in criminal conduct. It is to be contrasted with an act that is spontaneous, impulsive and ill-conceived. Although it was submitted by the appellant that this crime involved some degree of premeditation because of the use of "balaclavas", the material before the learned sentencing judge suggested only that the offenders used T-shirts fashioned into balaclavas. That may only mean that they pulled the T-shirts up to cover their faces. It was not made clear. Otherwise the enterprise has the flavour of an idea that was hatched in the course of a journey which was primarily for another purpose. What was put to the learned sentencing judge by Mr S's counsel was:

"There had been a suggestion, on my instruction, of obtaining some money, which Mr [S] had initially refused to be involved with, but throughout the course of the day there were some drugs consumed. Mr [S] instructs that he believed he was being given amphetamine to use but in fact it was LSD, which is not a substance that he'd had before and had a significant effect on him".

29 The submission just quoted also prompts some remarks about the part that illicit drugs played in this crime. I have little doubt that Mr S's abuse of drugs is contributed to by social and economic disadvantage, poor education and emotional deprivation. Such factors might point to a promise of rehabilitation; see Simpson J in R v Henry [1999] NSWCCA 111; (1996) 46 NSWLR 346 at 410 [336], McKee [2003] VSCA 16; (2003) 138 A Crim R 88 per Buchanan J at [13]. However, even if the crime was causally related to the respondent's drug addiction, it was not a mitigating factor and did not displace deterrence, particularly to other actual and potential drug users, as the principal sentencing consideration; R v Valenti (1989) 46 A Crim R 23 at 25; Henry in particular Spigelman CJ at [206] and following, and Wood J at [215] and following.

30 The learned sentencing judge was entitled to take into account the effect of the sentence he was to impose in combination with the sentences already being served by the respondent. It is necessary that I do so also in considering whether his Honour's sentence was manifestly inadequate, that is, to consider whether it was manifestly inadequate when regard is had to the sentences the respondent was already serving. Where an offender is being sentenced at a time when he or she is serving a sentence of imprisonment, the Court must take into account the so-called totality principle: Rae v State of Tasmania [2010] TASCCA 8 per Crawford CJ at [18]; Director of Public Prosecutions v Farmer [2005] TASSC 15 per Evans J at [24]; Postiglione v R at 308; LWR v Lusted [2009] TASSC 3; Harland-White v R [1998] TASSC 1; R v Gordon (1994) 71 A Crim R 459, and Draper v Tasmania Police [2004] TASSC 120. As Hunt CJ at CL in R v Gordon (1994) 71 A Crim R 459 pointed out at 466:

"When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable."

In Director of Public Prosecutions v Farmer (supra) Slicer J, with whom Evans J agreed, said at [5]:

"Totality is a reflection not of an artificial exercise, but of an attempt to evaluate overall criminal responsibility, achieve relativity and avoid the imposition of a 'crushing sentence', leaving the offender bereft of future change (Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; Mill v R [1988] HCA 70; (1988) 166 CLR 59, Wise v R [1965] TASStRp 14; [1965] Tas SR 196)."

31 In this case the respondent was entitled to little consideration arising from totality. He was already subject to three sentences of imprisonment which had been imposed for numerous offences involving considerable criminality. One of those sentences was to be served concurrently with the others.

32 I have concluded that on application of all the foregoing factors and principles, the sentence of two years' imprisonment with a non-parole period of one year imposed by the learned sentencing judge was manifestly inadequate. It was so far below the acceptable range of sentences for this crime as to amount to an error. It was unreasonable and plainly unjust. It did not adequately reflect the seriousness of the crime. That is so even when taken in combination with the sentences already being served by the respondent. This crime called for a sentence with particular regard to general deterrence and denunciation. The respondent was one of two men who perpetrated a robbery of a vulnerable premises while disguised and accompanied by the co-offender using a firearm to menace an employee by pointing it at her. The crime had a serious and ongoing impact on two female victims. A sentence was required which made clear to others, particularly those affected or motivated by abuse of illicit drugs, the consequences to be expected from such conduct. The promise and probability of rehabilitation was not so great as to displace deterrence as the primary consideration.

33 I would therefore allow the appeal. I would quash the order of the learned sentencing judge and substitute a sentence of imprisonment for three years to commence on the expiration of the sentences imposed by the Magistrates Court on 29 January 2013 and 8 May 2013. To allow for the respondent's youth and prospects of rehabilitation, I would order the minimum period for eligibility for parole. I would order that he not be eligible for parole until he serves 18 months of the sentence imposed by this Court.