Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Armed robbery - Robbery at hotel using shotgun which discharged - Sentence of three years' imprisonment with non-parole period of two years manifestly inadequate.

Judgment Number: [2018] TASCCA 9

DIRECTOR OF PUBLIC PROSECUTIONS v JESSE LEE FLETCHER-JONES

2 Sentence of three years' imprisonment with non-parole period of two years set aside.

1. Respondent sentenced to 5½ years' imprisonment with effect from 25 September 2017.

1. Respondent not eligible for parole until he has served half of that sentence.

DIRECTOR OF PUBLIC PROSECUTIONS v JESSE LEE FLETCHER-JONES

DIRECTOR OF PUBLIC PROSECUTIONS v JESSE LEE FLETCHER-JONES

1. The respondent pleaded guilty to one count of armed robbery committed in the early hours of 25 September 2017. In addition, Marshall AJ dealt with complaints relating to stealing a motor vehicle, making off without payment and possessing a firearm without a licence.
2. The learned sentencing judge imposed a sentence of three years' imprisonment for the crime of armed robbery and no additional penalty was imposed with respect to the remaining charges. The Director of Public Prosecutions (the Director) has appealed against the sentence of three years' imprisonment on the sole ground that "the learned Judge erred in law in that he imposed a sentence which was manifestly inadequate in all the circumstances of the case".

1. The sentencing judge summarised the facts of the offending as follows:

"Some time between 6.30pm and 11pm on 24 September 2017, you stole a red Subaru Impreza station wagon. At about 2.30am on 25 September 2017, you stopped the Impreza next to a petrol pump at the BP Service Station in Lindisfarne and filled a small container with $29.09 worth of fuel, and then drove off without paying for the fuel.

At about 2.56am on 25 September 2017, you drove the Impreza to the Elwick Hotel in Glenorchy. You parked the Impreza directly in front of the hotel. You entered the hotel with a rifle which you used to stick inside the open door as a patron was leaving to prevent the doors from locking. You entered the lounge bar of the hotel where the gaming machines are located. There were two staff and three patrons inside the hotel.

You approached the gaming counter. At the time, Danny Cowen, the manager on duty, was in an office behind the counter. Mr Cowen had the till from the gaming lounge register with him. Mr Cowen heard shouting in the gaming area and turned around to face the gaming counter. There he saw you, standing on the counter holding a gun that was pointed at his face, less than a metre away. You told Mr Cowen to put the 'money in the bag'. As Mr Cowen took a calico bag and started to fill it with money, you began a countdown.

While Mr Cowen was placing the money in the bag, you fired a shot in the direction of the counter and told another staff member, Mr Scott, to 'hurry up' with the money. Mr Cowen handed you the bag of cash which contained about $2,500. You had been wearing sunglasses when you entered the hotel. They fell onto the floor on Mr Cowen's side of the counter. You told Mr Cowen to get the glasses but, before he had done so, you jumped down from the gaming counter and ran out of the hotel the same way you had entered.

Earlier you were observed by a patron of the hotel when standing on top of the gaming counter with one hand on the barrel of the rifle and one hand on the trigger.

Another patron, Mr David Miller, was sitting at a poker machine at the time of the incident. He described you as wearing high visibility gear and noticed that your face was covered. Mr Dawit Dersolign, another patron, noted that you were wearing what looked like a mask."

1. After the robbery, in convoy with people who had been waiting for him outside the hotel, the respondent drove the stolen Impreza to Chigwell. At 3.15am police attended at Wesley Place, Chigwell and saw the Impreza fully ablaze.
2. At about 3.30am the respondent entered a residence at Chigwell where he gave the firearm to a Mr Michael Hopkinson, one of the group who had been waiting for the respondent outside the hotel. The respondent cleared seven rounds of ammunition from the firearm which was then hidden in the guttering above the backdoor of the premises.
3. On 25 September 2017 the respondent was arrested and participated in a video recorded interview. He denied being involved in the theft of the Impreza, failing to pay for petrol or being involved in the armed robbery. The respondent pleaded not guilty in the Magistrates Court on 27 September 2017 and was committed for trial in the Supreme Court.
4. It was only through the good work of the police that sufficient evidence was gathered to produce a strong case against the respondent. On 5 January 2018 counsel for the respondent told the Director that he would be pleading guilty.
5. As to the impact of the crime of armed robbery, fortunately no one was physically harmed. One of the patrons described being "scared" while another was unable to sleep for a few days and did not return to work at the hotel for about four months. The second patron no longer felt safe going places at night.
6. As to matters personal to the respondent, the sentencing judge provided the following summary:

"You are a youthful offender, being 19 years of age. Your criminal history commenced in 2016, as a result of an addiction to Ice. Your previous offences include motor vehicle stealing, aggravated burglary and possessing a firearm without a licence. It is an extensive criminal history over a relatively short time frame. You previously held an internship with Briap Motorcyle for four months, and intend to complete Certificates I and II in Construction on release from prison. You had a number of years in active sport before falling in with the wrong crowd. You hope to re-engage with your previous friendship circle on release. You are in regular contact with your family and hope to live with your older sister and her partner on release."

1. The armed robbery was committed by the respondent only four months after he was shown leniency through the imposition of a suspended sentence. On 25 May 2017 the respondent was released from custody after the imposition by the Chief Magistrate of a suspended detention order for a period of 6 months, the balance of which was suspended for 18 months. The order was imposed in respect of 47 offences committed over the period July 2016 - March 2017:

Possess a firearm to which a firearms licence may not be issued

1. In committing the crime of armed robbery, and the other offences, the respondent was in breach of the suspended detention order. As the Director submitted, the respondent's criminal conduct on the occasion in question "manifests a continuing attitude of disobedience of the law".
2. The Director drew attention to a number of aggravating factors:
   • The crime was premeditated. The planning included discussing with a staff member of the hotel the possibility of committing an armed robbery, and obtaining a firearm prior to attending at the hotel.
   • The firearm was stolen.
   • The firearm was loaded.
   • The firearm was directed at members of the hotel staff.
   • The firearm was directed at the duty manager from a very close distance, described by the duty manager as not even a metre from his face.
   • The firearm was recklessly discharged in circumstances involving significant risk of harm to persons in the vicinity.
   • In committing the crime, the respondent behaved in an aggressive manner:

"He began to 'count down' as [the duty manager] placed the money into the bag and told him to 'hurry up' with the money after the firearm had been discharged. This was obviously intended to create an atmosphere of fear in order to achieve his purpose ... The threats continued after the firearm had been discharged significantly increasing the terror to the victims and patrons of the hotel."

• The crime was committed on commercial premises late at night. Such businesses are particularly vulnerable to this type of crime.
• The respondent was wearing a disguise in the form of a face covering, "an act that was likely to arouse added fear in the victims".
• The stolen motor vehicle used in the commission of the crime was destroyed.

1. The Director also suggested that there is no evidence of remorse. While the respondent eventually pleaded guilty, there is no material to suggest that the decision to plead guilty was brought about through remorse.
2. Counsel for the respondent informed the sentencing judge that the respondent was sorry for what he had done and the effect of his conduct on persons in the hotel:

"He does feel a great deal of remorse for the offending and the impact that he had on the patrons of the hotel and [the duty manager]. He instructs that he would seek out a way of apologising in the future, if appropriate. He instructs that he thinks about the offending a lot, particularly at night time, and in his words, he is shocked by his actions. He instructs that he would never had thought himself capable of acting in the way that he did.

He also recognises the impact his offending and his incarceration has had on his family and again, he is extremely apologetic about that."

1. The sentencing judge did not comment on the question of remorse. His Honour noted that in addition to the respondent's initial denial of involvement in the crimes, the respondent pleaded not guilty in the Magistrates Court on 27 September 2017, after which he was committed to the Supreme Court for trial. It was not until 5 January 2018 that counsel for the respondent advised the Director of the change of plea.
2. In these circumstances, it is difficult to find in favour of the respondent that he is truly remorseful. However, it is not unreasonable to assume in favour of the respondent that he is shocked by his own actions and is, in a general way, sorry for what he did. Perhaps, as put by his counsel, "being sober for the first time in essentially his adult life, has provided him with ... insight".
3. The sentencing judge noted that the purpose of the robbery was to buy drugs. Counsel for the respondent advised the trial judge that on the day of the robbery, the respondent had consumed 1 gram of Ice which was five times his normal daily consumption. I agree with the submission of the Director that the consumption of Ice and intoxication was not a mitigating factor. The excessive use of the drug was likely to make the respondent more unpredictable in his behaviour and to increase the risk of harm to staff and patrons of the hotel through the discharge of the firearm.
4. In written submissions, counsel for the respondent acknowledged that the offending under consideration is a "more serious example of armed robbery". Counsel also acknowledged the existence of a number of factors which aggravated the seriousness of the criminal conduct. However, in urging that the sentence is not manifestly inadequate, counsel emphasised the following matters:
   • No physical injuries were caused to any person.
   • No evidence was led to suggest that the victims suffered from serious and on-going psychological trauma or emotional harm.
   • While reckless, the discharge of the weapon was accidental.
   • Although premeditated, the crime was "not particularly well planned" and was not carried out with any degree of skill.
   • The crime was committed at approximately 2.56am when only two staff and three patrons were present.
   • The respondent was aged only 19 years at the time of the offending and was, for the purposes of criminal law, a "youthful offender".
   • The respondent's prior criminal offending did not involve physical violence.
   • In view of the respondent's young age and limited prior offending, it was open to the sentencing judge to find that the respondent had not "developed settled criminal habits and rehabilitation was the prominent factor".
   • Alternatively, if rehabilitation was not "the prominent factor", nevertheless the respondent's youth and prospects of rehabilitation were significant factors in the exercise of the sentencing discretion.
   • The respondent was entitled to a reduction by reason of the utilitarian benefit of his plea of guilty.
5. The objective seriousness of the respondent's criminal conduct demonstrates that the respondent's crime of armed robbery was not at the lower end of the scale of seriousness for crimes of this type. It was a serious example of the crime of armed robbery and it involved significant risk of physical harm to persons in the vicinity. There were no mitigating circumstances attaching to the objective circumstances of the offending. Further, although the respondent was young and the sentencing judge generously found that the respondent had "relatively good prospects of rehabilitation", the respondent's personal circumstances did not attract significant mitigation, particularly in view of his prior offending and his breach of the suspended sentence.
6. The sentencing remarks were relatively brief, but the sentencing judge referred to the essential matters of the crime and the serious nature of the respondent's criminal conduct. There is no error apparent in the remarks. Although his Honour did not refer to the important factors of general deterrence and denunciation, there is no basis for inferring that his Honour overlooked those matters.

1. The principles governing Crown appeals against sentence are not in doubt. They were helpfully summarised by Pearce J, with whom Tennent and Wood JJ agreed, in Director of Public Prosecutions v Harington [2017] TASCCA 4 at [94]- [96]:

"[94] In Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, I summarised the principles to be applied by this Court in appeals on the ground of manifest excess or manifest inadequacy in the following terms:

'As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is "unreasonable or plainly unjust". It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. 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: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be "accorded a wide measure of latitude": Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539.'

[95] This is a Crown appeal. The principles to be applied were reviewed in Director of Public Prosecutions v Swan [2016] TASCCA 9 at [24] and following. Those principles derive from the underlying principle that a primary purpose of Crown appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462 at 465-466 [1]- [2]. They also serve to maintain public confidence in the administration of justice by the intervention of this Court in the case of a manifestly inadequate sentence: Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 306; R v Stoupe [2015] NSWCCA 175 at [115]- [116]. In Everett v The Queen, McHugh J said at 306:

'Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.'

[96] The appellant's right of appeal derives from the Code, s 401(2)(c). The appellant must persuade this Court that a more severe sentence is warranted in law and should have been passed in substitution for the original sentence. In any other case, the Court must dismiss the appeal. Thus, the appellant must not only establish appellable error in the exercise of the sentencing judge's sentencing discretion, but also negate any reason why this Court's residual discretion not to interfere should be exercised: R v Hernando [2002] NSWCCA 489, 136 A Crim R 451 at [12]; CMB v Attorney-General (NSW) [2015] HCA 9, 317 ALR 308, 89 ALJR 407; 243 A Crim R 282, per French CJ and Gageler J at [34], and Kiefel J (as she then was), Bell and Keane JJ at [66]."

1. In common with other Australian jurisdictions, armed robbery is a crime that is too prevalent in Tasmania and is regarded as particularly serious. Numerous authorities have emphasised the seriousness and the importance of both general and personal deterrence, together with denunciation, including: R v McFarlane [1993] TASSC 161; (1992) 2 Tas R 201 per Cox J (as he then was) at 205, Crawford J (as he then was) at 210 and Zeeman J at 221; Braslin v Tasmania [2010] TASCCA 1 per Porter J at [22] and [23]; Director of Public Prosecutions v CSS [2013] TASCCA 10 per Pearce J at [19]-[22]; Streets v Tasmania [2016] TASCCA 13 per Pearce J at [12]-[14]. While all crimes of armed robbery are serious, the use of a loaded firearm in the course of an armed robbery is a particularly aggravating circumstance. It should not be overlooked that the respondent did not merely carry the loaded firearm. With his hand close to the trigger, he pointed it at an employee of the hotel from a very close distance and, albeit accidentally, recklessly discharged the weapon.
2. Balanced against the obvious seriousness of the respondent's criminal conduct are matters personal to the respondent, particularly his youth. For good reason, where reasonably possible criminal courts give priority to the rehabilitation of youthful offenders. However, when youthful offenders commit very serious crimes, the protection of the public dictates that the youth of the offender and the prospects of rehabilitation cannot prevail over the need to impose a custodial sentence of sufficient length to reflect the importance of both general and personal deterrence, together with denunciation and punishment: Braslin v Tasmania per Porter J at [23] and [29].
3. Returning to the serious criminal conduct of the respondent, there are matters that require additional attention.
4. In preparation for sentencing in the Magistrates Court, two reports were prepared for the assistance of the Chief Magistrate. The first was prepared by a probation officer and the report is dated 22 May 2017. At the time the report was prepared, apparently the respondent had been charged with 14 offences. The respondent told the probation officer that Ice had taken over his life, but he was off the drugs and there was "no way" that he was ever going back to drugs. The probation officer reported that when discussing the effects of the offending on victims and his family the respondent became "visibly upset" and displayed "genuine remorse" for his actions and a deep insight into his behaviour, "including the long-term ramifications".
5. The second report dated 24 May 2017 was prepared by a youth justice worker. It appears that the youth justice worker was aware of most, if not all, of the offences brought before the Chief Magistrate.
6. Again, the respondent said he felt sorry for the victims of his offending and expressed shame and "great regret" for his actions. As to the issue of his addiction and the plans for the future, the youth justice worker reported as follows:

"Jesse stated that upon his release from custody, he has no intention of going back to that lifestyle and hopes to never use illicit substances again, reporting his motivation to remain drug free is his goal to play football and for his family. He stated that he does not feel that he is in a position to need drug and alcohol counselling as he believes that he has detoxed and is in a good head space to move forward in his life without using, however agreed that if this were to be a condition of his order that he would engage in such treatment."

1. The youth justice worker reported that the respondent had presented with a "complete change in attitude towards offending and illicit substances". Further, in the view of the youth justice worker, the respondent had been able to "demonstrate insight and remorse in relation to this period of offending and drug abuse".
2. If the respondent felt genuine remorse and possessed the insight described by the authors of the reports, his remorse and insight was short-lived in its effect upon his criminal behaviour. Similarly, the fact that a suspended detention order for 6 months was hanging over his head did not deter the respondent from returning to his criminal lifestyle. Counsel for the respondent informed the trial judge that upon the respondent's release in May 2017 he continued using methylamphetamine, and that use continued on a daily basis until his arrest.
3. The evidence before the sentencing judge demonstrated that not only did the respondent return to use of methylamphetamine immediately after his release in May 2017, within a few weeks he was planning to commit the armed robbery. During June 2017 the respondent spoke to a bartender at the hotel and asked about how much money was kept on the premises. He was told that there was not much money and it was collected on random days. The respondent went on to tell the bartender that he was thinking about robbing the hotel and using a sawn off shot-gun. According to the bartender, the respondent said he had been "scoping it out because he was thinking about robbing it".
4. As mentioned, counsel for the respondent told the trial judge that the respondent was using a couple of points of methylamphetamine per day, but on the day of the robbery he consumed a gram of the drug, being 10 points. CCTV footage, played during the appeal, shows the respondent standing on the gaming counter waving the .22 lever action rifle around erratically within a close distance of the duty manager. It was while the respondent was waving the weapon around, with his hand close to the trigger, that the rifle discharged.
5. Although a youthful offender, the respondent was aged 19 at the time of the offending. Having committed a large number of offences, including serious offences, between July 2016 and March 2017, and having been offered the opportunity of responding to the leniency of the Court and the assistance offered through supervised probation, the respondent immediately rejected that opportunity by returning to drug use and planning to commit an armed robbery. He carried through with the plan and, four months after being released on the suspended detention order, he stole a motor vehicle, and committed the armed robbery with a stolen rifle which was discharged during the course of the robbery.
6. The sentencing judge was generous to the respondent when he assessed the prospects of rehabilitation as "relatively good". Even if that assessment is accepted, in these particularly serious circumstances both general and personal deterrence were particularly important factors in the exercise of the sentencing discretion, and only limited weight could be given to the youth of the respondent.
7. There is no tariff for the crime of armed robbery. The information provided to the Court by the parties suggests that between 2001 and 2014 sentences ranged from as low as a few months to eight years.
8. The information provided by the parties is helpful, but of limited value. In Hili v The Queen [2010] HCA 45, 242 CLR 520, the High Court was concerned with an appeal from a decision of the Court of Criminal Appeal allowing a Crown appeal in respect of sentences imposed for criminal offences against the Commonwealth law. The majority judgment explained the use to be made of a history of sentences at [54] and [55]:

"[54] In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. 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]. 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'.

'[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were'." [Footnotes omitted.]

1. The following passage from the majority judgment in Barbaro v The Queen [2014] HCA 2, 253 CLR 58 at [40] and [41] is also pertinent:

"[40] The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.

[41] As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. And as each of Buchanan JA and Kellam JA rightly observed in MacNeil-Brown, the synthesis of the "raw material" which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel." [Footnotes omitted.]

1. As I have said, in my opinion the respondent's offending was not at the lower end of the scale of seriousness for crimes of armed robbery. It was a serious example of this crime. There were limited circumstances of mitigation. Both general and personal deterrence were particularly important factors in the exercise of the sentencing discretion. In my opinion, notwithstanding the respondent's youth and plea of guilty, a sentence of three years' imprisonment for such a serious crime was manifestly inadequate to the point of demonstrating error in the exercise of the judicial discretion.
2. Having reached the view that the sentence was so manifestly inadequate as to demonstrate error in the exercise of the sentencing discretion, it is necessary to consider whether the residual discretion should be exercised not to interfere with the sentence. In this regard, the youth of an offender and prospects of rehabilitation are, potentially, of importance. However, in the circumstances under consideration, I am satisfied that it would be inappropriate to exercise the residual discretion. For the reasons discussed, the respondent's youth carries limited weight by way of mitigation. To allow this sentence to stand would send the wrong message to those who are minded to commit crimes of armed robbery and the sentence would fail in its objective of protecting the public. Further, to allow the sentence to stand would undermine public confidence in the administration of criminal justice in an area of great concern to the community.
3. For these reasons, I would allow the appeal and set aside the sentence of imprisonment for three years. I would impose a sentence of 5½ years' imprisonment and order that the respondent be eligible for release on parole after serving half of that sentence. In my view the respondent's youth and capacity for insight into conduct and addiction provide positive signs for his rehabilitation which will best be promoted through the opportunity of release on parole.