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[2012] TASCCA 11
Court of Criminal Appeal (Tas)
2012-10-04
Wood JJ, Blow J, Evans J, Porter J
Original judgment source is linked above.
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: DPP v Burns [2012] TASCCA 11
Criminal Law - Appeal and new trial - Appeal against sentence - Appeals by Crown - Other matters - Sentence of 10 months' imprisonment together with a probation order for two convictions of aggravated armed robbery and a conviction of common assault - Whether sentence manifestly inadequate.
R v McFarlane [1993] TASSC 161; (1993) 2 Tas R 201; Braslin and Cowen v Tasmania [2010] TASCCA 1, referred to.
Judgment Number: [2012] TASCCA 11
DIRECTOR OF PUBLIC PROSECUTIONS v PHILIP THOMAS BURNS
DIRECTOR OF PUBLIC PROSECUTIONS v PHILIP THOMAS BURNS
1 Following the respondent's plea of guilty to two charges of aggravated armed robbery and a charge of common assault, Blow J sentenced him to a global sentence of 10 months' imprisonment with effect from 18 March 2012, and ordered that he be subject to a probation order to operate for 12 months following his release from prison. The Director of Public Prosecutions appeals against this sentence on the ground that it is manifestly inadequate.
2 When sentenced, the respondent was 24 years of age. He was 23 when he committed the offences.
3 The facts provided to the learned sentencing judge referrable to the respondent's criminal conduct included the following.
Common assault and aggravated armed robbery on 3 March 2012
4 At 3.35pm on Saturday 3 March 2012, the respondent and Jasmine Smith went to Woolworths Supermarket, at Glenorchy Central. When in the store they went to the meat section and placed seven packets of meat to the value of $171 into a bag. They then approached the front of the store. At this time Ms Smith was in possession of the bag containing the meat, and the respondent shielded her from an employee of the store, Jacinta Hall.
5 When Ms Hall went to follow Ms Smith, the respondent grabbed Ms Hall by the throat and arm, pulled her towards him and punched her to the chest. This conduct is the basis of his conviction for common assault.
6 The Assistant Store Manager, Darren Richards, and an employee, Matthew McHugo, approached the respondent and Ms Smith after they left the store. Thereupon the respondent pushed Mr McHugo and said "fuck off". Mr Richards said to the respondent that he wanted to talk about the meat. The respondent ran at Mr Richards with both fists in the air. At this time the respondent was seen to be holding what was believed to be scissors towards Mr Richards. The respondent was, in fact, holding a paint scraper which he had stolen from the store. He had taken it from his pocket and placed it up his sleeve, so that only the tip of the scraper could be seen. He threatened Mr Richards not to come any closer or he would cut "them". This conduct is the basis of his first conviction for aggravated armed robbery.
7 Ms Smith watched the incident unfold. She and the respondent left the area together.
8 At approximately 5.18pm on Saturday, 17 March 2012, the respondent, Ms Smith and Todd Burns, the respondent's brother, entered Woolworths Supermarket in Sandy Bay. The respondent and Ms Smith went to the meat section of the store and Mr Todd Burns went to a separate section of the store. He apparently played no role in what then ensued.
9 The respondent and Ms Smith had a backpack in their possession. They placed a quantity of meat and gravy in the backpack. A customer notified an employee of the store, Mrigesh Khattri, of what the respondent and Ms Smith were doing. Mr Khattri went to the front counter to notify management. With the respondent carrying the backpack, he and Ms Smith attempted to walk through the store's express checkout without paying for the items in the backpack. Mr Khattri approached them. The respondent refused to stop and a struggle broke out. Mr Khattri attempted to place the respondent in a bear hug to restrain him. The backpack fell to the ground. The respondent took a knife from his trousers and held it downwards. It had a 10 to 12 cm blade. In the scuffle that then ensued Mr Khattri was stabbed two times to his upper right thigh. The respondent was wrestled to the floor. Ms Smith moved in and dragged the respondent away. He got to his feet and as he did so he waved the knife a number of times at staff.
10 Ms Smith collected the backpack and she and the respondent left the store. A member of the public used a row of trolleys to force them out of the door of the store. They left the area in a car.
11 On 18 March 2012, police interviewed the respondent in relation to the events of the previous day. He denied having entered the Woolworths Supermarket in Sandy Bay on the previous day and was adamant that he had been at home all the previous day. After viewing surveillance footage of what had occurred, he denied that it showed him, Ms Smith or his brother.
12 When interviewed by police on 24 March 2012 in relation to his conduct on 3 March 2012, the respondent said that on that occasion he had been alone and stoned off his head. He had stolen the meat in order to sell it and use the proceeds to purchase speed and dope.
13 His Honour was provided with the respondent's record of prior convictions, and the following table of outstanding charges to which the respondent had pleaded guilty and was due to be sentenced in the Court of Petty Sessions. (We have been told that for these offences the respondent ultimately received a sentence of six months' imprisonment, cumulative upon the sentence that is the subject of this appeal.)
Unlawfully carry a dangerous article in a public place
14 Jacinta Hall, the victim of the common assault, suffered bruises on her left arm and a sore swollen neck, which was tender and painful for around one week. Thereafter she recovered well. She was quite shaken up on the day and found it a bit scary to go to work for a few days, but soon got over it. She had trouble sleeping on the night of the incident. She did not take any time off work.
15 Darren Richards, the victim of the first charge of aggravated armed robbery, was quite frightened by what occurred and took three days off work.
16 Mrigesh Khattri, the victim of the second charge of aggravated armed robbery, suffered two stab wounds. He was taken to hospital but the wounds did not require stitches. The wounds were painful and made it difficult for him to sleep and move for about two weeks. Within about three weeks he was back to normal, although he still had a scar. Following the attack he was reluctant to return to work and anxious when he did so, but soon managed to overcome his concerns.
17 Information put before the Court by the respondent's counsel in the course of the sentencing hearing included the following. The respondent was in receipt of a disability support pension, having been diagnosed with an intellectual disability at an early age. He had no children. He was one of three children born to his parents. He had no contact with his father, but a good relationship with his mother and siblings. He was in reasonably good physical health.
18 The respondent grew up in difficult circumstances. His parents separated when he was relatively young. His mother experienced periods of homelessness and instability, and for most of his childhood his mother struggled to make ends meet. The respondent and his siblings were exposed to people who often acted dishonestly in order to meet their needs, and the respondent was also exposed to other anti-social behaviour.
19 The respondent was diagnosed with attention deficit hyperactivity disorder in his primary school years. In grade eight he was expelled from Kingston High School for disruptive behaviour and destroying property. Thereafter his involvement with education was some one-on-one programs at Hobart College. His mother and sister said the respondent was sometimes unable to understand things, and it was necessary to make things simple for him. When things were explained to him he could understand quite well.
20 Prior to the respondent's relationship with Ms Smith, he was doing relatively well working at a laundry for a period of some six months. During this period his life had taken on some routine and stability. The commencement of his relationship with Ms Smith saw the breakdown of that stability and routine. The respondent's mother said the respondent was in love with Ms Smith and would do anything to please her. During his relationship with her, his cannabis use had increased and he had turned to using amphetamine.
21 When he entered the premises from which he stole it had not been his intention to use violence. He only resorted to violence when confronted by staff.
22 Had his victims been present in Court the respondent would have told them he was sorry for what he had done. He had expressed some relief that the person he injured was not more seriously injured.
23 Although the respondent had made no admissions to police in relation to the second incident, relatively quickly after his remand in custody he had given instructions to plead guilty to all matters.
24 The respondent had been in custody since 19 March 2012. He was doing quite well in custody, although his family had been unable to visit him because of difficulty in providing photographic identification. He reported having been "picked up" by custodial staff, having self-harmed when in custody and having difficulty sleeping.
25 Counsel for the respondent provided his Honour with a copy of a pre-sentence report dated 4 May 2012 that had been prepared for the magistrate who was to sentence the respondent for the outstanding charges detailed in the table in par[13] of these reasons. The information in that report included the following.
26 A pre-sentence report in October 2007 had recorded that in 2005 a Youth Justice forensic psychologist found that the respondent scored poorly on all aspects of the Wechsler intelligence scale for children, observing that he had severe memory difficulties and a limited capacity for abstract reasoning. Whilst that 2007 report included a claim that the respondent could not read, Kevin Crowe, the probation officer who provided the report dated 4 May 2012, noted that he had observed that the respondent was able to read typed notes prepared by Mr Crowe and some other documents.
27 The respondent had been employed for two months at a butchers, and for six months as car detailer. He had worked at a laundry between April and June 2010, and from early 2011 for about six months. The manager of the laundry reported that the respondent was unreliable. Whilst the manager had taken the respondent to an anger management course and to another centre, as well as arranging accommodation for him, all these arrangements had fallen apart due to the respondent's inappropriate actions. The manager was very disappointed with the respondent and would not re-employ him.
28 The respondent told Mr Crowe that when he resided with his sister, on account of her and her children he did not smoke indoors, and only used cannabis outside her house. He said he did not drink alcohol as it made him violent and he did not want to hurt anyone. He also said that during the time of his offending he was: "Under drugs 24/7 - doing dope flat out. Speed now and again - going haywire" and that all his stealing offences were motivated by his need to purchase drugs.
29 The charges for which the respondent was to be sentenced in the Court of Petty Sessions included a charge of assault by attempting to run over Mr Will Stockman and of assaulting and threatening a police officer. As to the offence against Mr Stockman, the respondent told Mr Crowe, "He tried to stop me shoplifting. I wanted to scare him away. I swerved [to avoid him]." As to the offences against the police officer, the respondent said, "I was trying to steal. I wanted to scare him away. Not want to hurt him."
30 Mr Crowe reported that an assessment of the respondent on 18 September 2009 for entry into the court mandated drug program concluded that diversion into that program would be ineffective given the predominant and complex nature of cognitive behavioural and mental health issues that significantly undermined the respondent's ability to participate in structured interventions or treatment pathways. Mr Crowe expressed the view that this assessment remained good in May 2012.
31 Mr Crowe reported that the respondent understood why he offends, and was certainly willing to reduce the level of physical harm his offences may cause to others. The report finished with Mr Crowe's observation that although the respondent had not responded well to any form of supervised help before, it may be possible to assist him by means of a probation order.
32 In concluding her submissions to the learned sentencing judge, counsel for the respondent:
33 The respondent had a significant number of prior convictions for a variety of offences, including offences that involved violence and dishonesty.
34 In July 2005, he was sentenced to 10 months' detention, three months of which were suspended on condition that for 12 months from his release he not commit any offence which if committed by an adult could be punishable by imprisonment. That sentence was imposed for numerous offences, including, ten convictions for stealing, five convictions for trespass, three convictions for assaulting a police or public officer, two convictions for abusing a police officer, convictions for failing to comply with the direction of a police officer and resisting a police officer, a conviction for assault, and two convictions for unlawfully possessing or carrying a dangerous article in a public place.
35 On 24 November 2005, he was convicted of two offences for stealing, and of offences of destroying property, breaching a restraint order and trespass, all of which offences were committed subsequent to his sentencing on 28 July 2005.
36 In February 2006, he was sentenced to three months and five days' detention, wholly suspended on condition that for 12 months he not commit any offence which if committed by an adult could be punishable by imprisonment. That sentence related to nine offences, two of which were committed subsequent to his sentencing on 24 November 2005.
37 In May 2006, he was convicted for the unlawful possession of property on 29 September 2005, and again on 16 November 2005, trespass on 24 November 2005, and stealing on 5 December 2005.
38 On 4 September 2006, he was sentenced to one month's imprisonment, wholly suspended on condition that for twelve months he not commit any offence of assault or crime of violence. That sentence was imposed for convictions of common assault and resisting a police officer committed on 21 April 2006.
39 In 2007, he was convicted of breach of bail on 10 occasions, as well as related offences.
40 On 1 November 2007, he was sentenced to three months' imprisonment for common assault, together with nine months' imprisonment cumulative upon that sentence, but with five months suspended on condition that for 18 months he be of good behaviour and commit no crime or offence involving dishonesty. The latter sentence was imposed for various convictions. Those convictions that related to offences committed during 2007 included five of stealing, three of trespass, six of receiving or being in possession of stolen property, one of burglary and three of common assault.
41 On 21 November 2008, he was sentenced to six weeks' imprisonment for two convictions of stealing.
42 On 23 December 2008, he was sentenced to two months' imprisonment on convictions that included five offences of stealing committed on 8 November 2008.
43 On 18 June 2009, he was sentenced to two months' imprisonment for offences of stealing and trespass committed on 24 April 2009.
44 On 8 April 2010, he was sentenced to six months' imprisonment for new convictions and matters on which he was re-sentenced. The new convictions included three of stealing, one of possession of stolen property, one of unlawful possession of property, two of common assault, and two firearms offences arising from him being in possession of two shotguns and ammunition without an appropriate licence.
45 On 18 March 2011, he was convicted of two offences of trespass committed in 2010.
46 The following are his Honour's comments when sentencing the respondent:
"Mr Burns has pleaded guilty to two charges of aggravated armed robbery, and also a charge of assault related to the first robbery. I am dealing with the assault charge under s385A of the Criminal Code.
Mr Burns has a drug problem. On 3 March he went to a supermarket in Glenorchy with another person. They stole $171 worth of meat. They had no intention of eating it. They intended to sell it and buy drugs, or to exchange it for drugs. Mr Burns also stole a paint scraper from the supermarket. Before they left the store, one of the staff went to follow Mr Burns' companion, who had the meat, but Mr Burns assaulted the staff member by grabbing her by the throat and arm, pulling her towards him, and punching her to the chest. That is the incident to which the assault charge relates.
After the couple left the store with the meat, two male staff members approached the couple. Mr Burns menaced the two men with the stolen paint scraper, and threatened to cut them with it if they came any closer. The couple got away with the stolen meat.
Two weeks later, on 17 March, the same couple and three other people went to a supermarket in Sandy Bay. The couple stole a quantity of meat and two packets of gravy, again for the purpose of acquiring drugs. Mr Burns was armed with a knife. A staff member tried to stop Mr Burns from leaving without paying, and got him in a bear hug, but Mr Burns got out his knife and stabbed the man twice to the upper thigh. After a struggle, Mr Burns got to his feet, and waved the knife a number of times at staff. Mr Burns was arrested at his home the next day and has been in custody ever since.
The woman who was assaulted at Glenorchy suffered bruises, swelling and soreness. She was shaken, but did not take time off work, and made a full recovery. The man who was stabbed at Sandy Bay did not need stitches. His wounds healed but he has a scar. It was an upsetting experience for him.
Mr Burns was 23 when he committed these robberies, and is now 24. He has a long record of prior convictions, mainly for crimes of dishonesty. He has eight convictions for assault and two for assaulting police officers. He has been sentenced to imprisonment several times, but has apparently not committed any armed robberies before. He has an intellectual disability. That entitles him to a disability support pension. He has had employment on a number of occasions, but was unemployed when he committed these crimes.
There are a few minor positive signs. Mr Burns had been out of prison for about 18 months before he committed these crimes, and held employment at a laundry for about six months last year. A probation officer has reported that Mr Burns understands why he offends, and that he volunteered to keep a curfew, to undertake drug screening tests, and to meet a probation officer daily if required. He has not responded well to any form of supervision before, but the probation officer has suggested that some progress might be made, and has recommended a 12-month probation order. It also counts in his favour that he has pleaded guilty.
However these are serious crimes. Two people were injured. There was a risk that their injuries could have been much worse. I think the only appropriate penalty is a prison sentence.
Philip Thomas Burns, I convict you and sentence you to ten months' imprisonment with effect from 18 March 2012. I make a probation order, to operate for 12 months after your release from prison, with special conditions that (a) you must undergo assessment and treatment for drug dependency as directed by a probation officer; and (b) you must submit to testing for drug use as directed by a probation officer. ..."
47 Counsel for the appellant has not purported to identify any error in his Honour's comments on passing sentence. The sole ground of appeal is that the sentence was manifestly inadequate. As explained in the following, we are of the view that this ground is made out.
48 The matters raised in mitigation on behalf of the respondent were of modest to little weight.
49 At 24 years of age he was still a young man and he had no prior conviction for robbery. However, to a significant degree, his many prior convictions deprived him of any benefit by reason of these matters.
50 The impact of the break of about 12 months in his offending prior to September 2011 was largely negatived by the extent and persistence of his offending over the period of six months prior to the crimes in question.
51 As explained in R v Anderson [1981] VicRp 17; [1981] VR 155 at 160, and Roadley (1990) 51 A Crim R 336 at 343, little regard should be paid to general deterrence when sentencing an offender with very significant intellectual disabilities. See also Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 pars[53] - [54], Veen v R [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 476 - 477; Scognamiglio (1991) 56 A Crim R 81 at 86; Engert (1995) 84 A Crim R 67 at 70 - 71 and Wright (1997) 93 A Crim R 48 at 50. In this case the respondent's intellectual disabilities were not so great as to warrant disregarding general deterrence. With regard to the respondent's disabilities, his Honour was told that the respondent's mother and sister said he was sometimes unable to understand things and it was necessary to make things simple for him. The pre-sentence report included advice that a prior report contained a psychologist's statement that the respondent had been diagnosed with an intellectual disability, had scored poorly on all aspects of the Wechsler intelligence scale for children, had severe memory difficulties and a limited capacity for abstract reasoning. However, as to the degree of his disabilities it was pertinent that he could read; he had been able to obtain and remain in employment for periods of up to six months; he was able to recognise the danger of drinking alcohol and abstain from doing so; he recognised the consequences for his sister and her children of him smoking in their home and did not do so; he had been able to commit numerous offences and, in some instances, had anticipated and prepared for the need to use force to avoid apprehension. In the words of Mr Crowe, the respondent "understands why he offends".
52 Whilst the respondent's early pleas of guilty were mitigatory, the weight to be given to them was reduced by the reality that in pleading guilty he was bowing to the inevitable as it was highly likely that his conduct was recorded on the surveillance systems at each store.
53 With regard to the gravity of his offences it is to be noted that the robberies were not impetuous but the culmination of a course of repetitive and escalating criminal conduct. The respondent resided at Huonville. The final column on the table set out in par[13] of these reasons shows that during the period of about five months prior to the robberies, the respondent committed numerous offences in a variety of locations. In the main the offences were stealing. The area where the offences were committed included Woolworths - New Town on two occasions, Target - Hobart on three occasions, Big W - Rosny on two occasions, BigW - Glenorchy, Chickenfeed - Glenorchy, Woolworths - Glenorchy, Woolworths - Claremont, BigW - Kingston, and Woolworths - Rosny. When Mr Will Stockman tried to stop the respondent from shoplifting, the respondent took action to scare him away. The respondent assaulted and threatened a police officer who apparently interrupted him when he was trying to steal. Prior to the robberies in question, it is clear that the respondent's stance was that if anyone tried to interfere with him when stealing, he would resort to threats or the use of force to avoid apprehension. Consistent with that stance, he armed himself with a stolen paint scraper in the course of the robbery he committed on 3 March 2012, and he used it to threaten those who intervened. Again, consistent with that stance he went to the store he robbed on 17 March 2012, armed with a knife and used it when he was confronted. It is pertinent that the respondent continued to offend throughout the period prior to the robberies, notwithstanding his accumulation of outstanding charges.
54 The subject robberies were carried out on a Saturday afternoon at a supermarket where there was every possibility that those present would include the elderly and the young. In R v McFarlane [1993] TASSC 161; (1993) 2 Tas R 201 at 204, Cox J (as he then was) made the valid point 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". Paraphrasing what his Honour went on to say and adapting it to the respondent's circumstances, it is appropriate to say that the respondent's crimes are not merely offences against the supermarkets he stole from and who bear the burden of taking security precautions to protect their staff and property, nor against the staff whose interference was overborne by the respondent, but they are crimes against those members of the public who by chance were at the scene. They are very much crimes against the public at large and merit a sentence which reflects the sense of public outrage that their commission excites.
55 Both robberies involved the use of a weapon. In view of the inability to predict how those who witness an offence will react, and the respondent's willingness to resort to force to overcome interference, each robbery carried with it the risk that it could result in a serious injury, and, in the case of the second robbery, where a knife was used, there was a risk of fatal injury.
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.
58 Against this background we conclude that the respondent's offences required the imposition of a sentence that clearly denounced his conduct and served the interests of general deterrence. Moreover, bearing in mind his poor record, the relative failure of past sentences to discourage him from offending, and the failure of his accumulation of outstanding charges to check his offending, it was necessary to give considerable weight to the needs of personal deterrence. With respect, the sentence of 10 months' imprisonment that was imposed on the respondent fell well short of that which was required. It was manifestly inadequate and we quash it. In substitution for it we sentence the respondent to two and a half years' imprisonment to date from 18 March 2012. We order that he be eligible to apply for parole after serving one half of this sentence.
DPP
Burns [2012] TASCCA 11
(1993) 2 Tas R 201
(2011) 244 CLR 120
(1988) 164 CLR 465