PARTIES: ACTING DIRECTOR OF PUBLIC PROSECUTIONS

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Demanding property with menaces (two counts), robbery and assault - Wholly suspended sentence of 12 months' imprisonment and probation order.

Appellant: Acting Director of Public Prosecutions

Judgment Number: [2015] TASCCA 8

1. Sentence of 12 months' imprisonment, wholly suspended on condition that for two years the respondent commit no offence punishable by imprisonment, varied by adding further condition that the respondent perform 168 hours' community service.

1. This is a sentencing appeal. The respondent, Anthony Hawkins, pleaded guilty to four crimes that he committed during an episode of offending on the night of 30 April 2013 - two crimes of demanding property with menaces with intent to steal, a robbery, and an assault. On 20 October 2014 Tennent J sentenced him to 12 months' imprisonment, wholly suspended on only one condition, namely that for a period of two years he commit no offence punishable by imprisonment. Her Honour also imposed a 12 month probation order, to take effect from 8 November 2014 upon the expiry of an earlier 12 month probation order. The Acting Director of Public Prosecutions contends that the sentence was manifestly inadequate, and that the respondent should have been required to serve at least part of his prison sentence. It was not suggested that the head sentence of 12 months was too short.
2. At about 7.30pm on the night in question, police officers found the respondent in the Hobart bus mall. He appeared to be intoxicated. He was formally directed to leave the greater Hobart area. About 20 minutes later he was found in Collins Street, arrested for being there, taken to the Hobart Police Station, charged and bailed. He still did not leave the area that he was required to leave.
3. At about 8.30pm a man named Christopher Desire was walking through the Hobart bus mall when the respondent approached him, began pestering him, and demanded $50. They did not know each other. The respondent continued to pester Mr Desire, and made threats that he would kick his face in, that he would beat him, that he would kill him, and that he would shoot him in the face if he did not give him the money. These menaces and demands continued until Mr Desire reached the entrance of a food store to which he had been walking. The demands addressed to Mr Desire were the subject of the first charge of demanding property with menaces with intent to steal.
4. At the doorway, the respondent was approached by a man named Matthew Knight. He was an associate of Mr Desire. The respondent told Mr Knight that Mr Desire owed him $39, and threatened to bash Mr Desire if it was not paid. There was no such debt. Mr Desire did not have any money. Mr Knight knew that, feared that the respondent would harm Mr Desire, and therefore agreed to give the respondent some money. Mr Knight was not carrying enough cash to pay $39. He told the respondent that he would need to go to an automatic teller machine. He went to one, accompanied by the respondent, and was about to enter $40 into the machine as the amount to be withdrawn, when the respondent pushed him out of the way, entered $60, and took that amount, thereby committing the crime of robbery.
5. Mr Knight began walking along Collins Street. The respondent followed him and demanded $150, threatening to slit Mr Knight's throat and kill him if he did not hand over more money. The demand addressed to Mr Knight was the subject of the second charge of demanding money with menaces with intent to steal.
6. Mr Knight entered the premises of Village Cinemas in an attempt to get away from the respondent. Inside those premises, the respondent punched Mr Knight twice to the left side of his back. Mr Knight asked a staff member to call the police. The respondent threatened to kill Mr Knight if he saw him again, left, and was arrested a short time later with $60 in his possession.
7. This was a distressing experience for Mr Desire. He was about to fly to America for a holiday, having saved for that holiday over a long period. He arrived in an anxious, suspicious and cautious state. The respondent's behaviour spoiled the enjoyment of the early stages of the holiday, and has had a lasting psychological impact on him. It was no doubt a terrible experience for Mr Knight as well.
8. The respondent was 25 years old on the night in question and 26 at the time of sentencing. He had had a drug problem for some time, and had over 40 prior convictions for stealing, as well as numerous convictions for burglary, aggravated burglary, motor vehicle stealing, and other dishonesty offences. He had two prior convictions for assault. He had been the subject of three drug treatment orders, but all of them were ultimately cancelled. He served a sentence of imprisonment from 19 December 2012 until 22 April 2013. That is to say, he was released only eight days before committing the crimes to which this appeal relates.
9. A charge of failing to comply with a direction of a police officer to leave the Hobart area on the night in question was dealt with by a magistrate on 8 November 2013. The magistrate convicted the respondent of that charge and made a probation order for a period of 12 months as from that day. The probation order made by the learned sentencing judge took effect when that order ceased. Since the failure to comply with a police officer's direction formed part of the respondent's offending on the night in question, that offence and the conviction and probation order imposed in relation to it must be taken into account when determining whether the penalties imposed by the learned sentencing judge were manifestly inadequate.
10. It is clear that her Honour took a lenient course because of information provided to her that showed that the respondent had taken significant steps towards his rehabilitation since the night in question. The mitigating circumstances relied upon when he was sentenced, and my comments in relation to them, are as follows:
    • The respondent had an unsettled upbringing. He was the victim of violence and abuse on the part of his stepfather. He had been placed in care at different times during his childhood and adolescence.
    • On the night in question he took LSD, which he had not taken before and had not taken since.
    • He had been drug free since the start of 2014.
    • He had not re-offended.
    • Since the night in question he had found stable accommodation. He first went to live at New Norfolk with his brother. In about 2014 he moved into accommodation obtained with the assistance of the Salvation Army.
    • He had made a number of efforts to obtain employment during 2014. Early in the year he worked for about two months as a labourer at Maydena. He had a one week trial wood-cutting, and a three night trial at a restaurant in Salamanca Place in 2013.
    • He had commenced working as a volunteer at the Willow Court complex, and at a local community house.
    • He had enrolled in a certificate of agriculture course, and in a six month diploma of business course. He had completed almost four months of that course at the time of the sentencing.
    • He hoped to establish his own gardening business, and had been doing voluntary gardening work.
    • He had arranged with the authorities to enter into a repayment plan so as to pay over $5,000 in outstanding fines.
    • He had obtained the assistance of counsellors from a number of organisations, as well as obtaining assistance from his probation officer.
    • A psychiatrist, Dr Lane, provided a report in which he said that the respondent had shown greater insight into the causes of his previous problems, and that he had actively taken steps to rectify his behaviours and to improve his life of his own accord.
    • A probation officer provided a pre-sentence report in which he said that the respondent had dissociated himself from numerous acquaintances with criminal orientations. Dr Lane also reported that the respondent had been able to avoid his previous associates.
    • The probation officer reported that he had improved his attendance at probation appointments.
    • He had re-established contact with his 7-year old daughter.
    • He was very remorseful. Whilst he had little recollection of the events of the night in question, he accepted that he had behaved as alleged, and was appalled by the threats he had made, especially because he had once experienced a stabbing injury and was afraid of knives. He had written a letter of apology to the complainants, though he did not write that letter until about the time of the sentencing proceedings. The probation officer reported that he had expressed remorse over his actions, and shown some understanding of the possible impact of his actions on his victims, specifically suggesting that Mr Knight might not feel safe going to work any longer. Dr Lane also reported that the respondent "expressed significant regret and remorse over the events of that evening, and his primary role in them, and did not attempt to minimise either his actions or the consequences of the events".
11. Another relevant point is that the respondent spent some days in custody in relation to these crimes, from 20 June 2014 to 23 June 2014.
12. The respondent's crimes had a number of aggravating features. He had only been out of prison for eight days. He was defying a police direction to leave the area, even after having been arrested for failing to leave it. He confronted two innocent citizens who were going about their business in a public street. His criminal conduct continued over an extended time and over a distance from some hundreds of metres along city streets. His threats included threats to kill both complainants. There was an adverse emotional impact on at least one of those complainants.
13. Despite the substantial mitigating circumstances, these crimes called for a sentence that would adequately condemn the respondent's conduct, that would deter him from re-offending, and that should act as a general deterrent to others. Unfortunately the perceptions of large sections of the public as to suspended sentences are such that they do not tend to have much effect by way of general deterrence. As Evans J observed in Director of Public Prosecutions v Broadby, Cockshut and Woolley [2010] TASCCA 13; (2010) 20 Tas R 399 at [9], "there is a marked divergence between the views of the judiciary and the community in relation to the impact of suspended sentences". There is a tendency for members of the public to regard a suspended sentence as scarcely being any punishment at all. That view is misconceived. For one thing, a criminal record that includes a suspended sentence can disadvantage an offender in a number of ways, particularly in relation to obtaining employment. A suspended sentence involves a denunciation of an offender's conduct, and should provide an offender with a strong incentive not to re-offend. It is always highly likely that a suspended sentence will be fully activated if re-offending occurs. However, the fact that a wholly suspended sentence, without more, has limited effect by way of general deterrence is something that weighs in favour of a harsher package of sentencing orders than those imposed by the learned sentencing judge.
14. Because of the very substantial steps that the respondent had taken towards his rehabilitation, it was not unreasonable for the learned sentencing judge not to sentence him to immediate imprisonment. If he was able to stay out of trouble for a further two years, I think it would be entirely appropriate for the respondent not to have to serve his prison sentence. However, because of the serious nature of his crimes, his bad record, and the lack of impact that a wholly suspended sentence has in deterring others from offending, I consider that the sentencing orders made in this case were manifestly inadequate. In my view the only appropriate course, if a wholly suspended sentence was imposed, was to make its suspension conditional upon the respondent performing a substantial amount of community service.
15. I would therefore allow the appeal and vary the respondent's suspended sentence by adding a condition requiring him to perform 168 hours' community service.

1. I agree with the reasons of Blow CJ and with the orders which his Honour has proposed.