Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Parity between co-offenders - Plea of guilty to one count of committing an aggravated armed robbery - Whether sentence of seven years with parole eligibility after five years was unjustifiably disparate or manifestly excessive.

Judgment Number: [2014] TASCCA 1

1. Appellant's sentence varied by reducing the period of ineligibility for parole from 5 years to 3½ years.

1. I have read the judgment of Estcourt J in draft form. I agree with his reasons, and with the orders he proposes. There are some comments that I would like to add.

1. As Estcourt J has observed, it was appropriate for the appellant to receive a heavier sentence than his co-offender because he is older, and because he had a worse record. At the time of the robbery, the appellant was 34 years old, but his co-offender was only 21 years old.
2. The appellant has spent much of his adult life in prison, beginning with several short sentences in 1996, and several more in 1997. He was sentenced to 2½ years' imprisonment in March 2000 for crimes of dishonesty. He was sentenced to a cumulative term of eight months' imprisonment in November 2000 for a robbery - not an armed robbery. There were more short prison sentences in 2002, 2003 and 2004. In 2005 a magistrate sentenced him to 294 days' imprisonment for an assortment of offences, and to a cumulative term of one month's imprisonment for motor vehicle stealing and unlicensed driving. Those two sentences appear to have been concurrent with a sentence of 3½ years' imprisonment, backdated to 6 September 2004, which was subsequently imposed by a judge in relation to some crimes of dishonesty. Then the appellant was sentenced to a cumulative term of 21 months' imprisonment for crimes committed during a prison siege. He was released on parole in June 2009, and was not taken into custody again until 12 January 2011. On 9 January 2012, a magistrate gave him a sentence backdated to 12 January 2011, but he was then released, subject to a drug treatment order, and to a suspended sentence of seven months' imprisonment in relation to that order.
3. The co-offender's first custodial sentence as an adult was one of nine months' imprisonment with effect from 2 August 2009, imposed for unlawfully setting fire to property. He was no doubt released in early 2010. He was back in custody from 2 October 2010. In the months that followed, he was ordered to serve a sentence of 15 months' imprisonment as from that date, a concurrent sentence of two months, a cumulative sentence of eight months, and a cumulative sentence of one month. He was paroled on 31 August 2011, but his parole was revoked on 2 October 2011. He must not have been out of prison for long before the armed robbery that this appeal relates to. His record is a bad one, but that of the appellant is significantly worse.
4. It is true that the co-offender was sentenced not just for the crime of aggravated armed robbery, but also for one count of causing grievous bodily harm and one count of assault, both relating to crimes committed during the robbery, whereas the appellant was not charged with those additional crimes.
5. The co-offender's conviction for causing grievous bodily harm relates to injuries caused to a hotel customer, Mr Gath. One of the ingredients of the crime of aggravated armed robbery is the use or threat of violence in order to obtain the property stolen, or in order to prevent or overcome resistance, either immediately before, at, or immediately after the stealing: Criminal Code, s240(1). In the proceedings relating to the appellant, the learned sentencing judge was told that the co-offender hit Mr Gath to the eye and knocked him off his bar stool; that Mr Gath received injuries as a result; and that he required surgery for a fractured orbital socket. His Honour was told that the co-offender inflicted that violence whilst on his way towards the cashier's area in the hotel. It was implicit that that violence was used for the purposes of intimidation. That violence was therefore part of the conduct constituting the crime of aggravated armed robbery. Counsel for the appellant argued that that violence was no more than a consequence of the robbery, but I do not accept that. It was intimidatory conduct for the purpose of preventing resistance, and therefore part of the crime. However, because the appellant was not charged with causing grievous bodily harm, he had to be sentenced on the basis that there was no suggestion that he intended or foresaw the grievous bodily harm suffered by Mr Gath. By contrast, the co-offender, having been convicted of causing that grievous bodily harm, had to be sentenced on the basis that he at least foresaw the possibility of Mr Gath being seriously injured when he inflicted that violence.
6. The co-offender's assault conviction related to violence inflicted on another man, Mr Lynch. In the proceedings concerning the appellant, the learned sentencing judge was told only that the co-offender kicked at Mr Lynch without connecting. However the co-offender was sentenced on the basis that he punched Mr Lynch twice to the face, with the force of the second punch being enough to knock Mr Lynch to the ground.
7. Although the co-offender committed these crimes of causing grievous bodily harm and assault when the appellant did not, I still think that the co-offender's youth and his less dreadful record warranted a significantly more lenient sentence. In agreeing that the appellant's head sentence of seven years' imprisonment should stand, but that his parole ineligibility period should be reduced to 3½ years, I have concluded that, having regard to all the circumstances, the disparity between his sentence as so varied and the co-offender's sentence of six years' imprisonment, with a parole ineligibility period of three years, is not a disparity that should give rise to a perception of unequal justice or a justifiable sense of grievance as discussed in such cases as Lowe v R [1984] HCA 46; (1984) 154 CLR 606 and Postiglione v R [1997] HCA 26; (1997) 189 CLR 295.

1. In concluding that the parole ineligibility period of five years was manifestly excessive, I have regarded the following points as very significant:
   • In my view the appellant showed himself to be capable of reform after he was paroled on 5 June 2009. He had been in custody for nearly five years, since 6 September 2004. In the period from June 2009 to November 2010 inclusive he did not commit very many offences. It is true that he committed offences of driving whilst disqualified and driving an uninsured vehicle in October 2009, and an offence described as "unlawful control of property" in March 2010. His conduct started to deteriorate markedly when he committed a burglary involving stealing in September 2010, and then in October 2010 some firearms offences and an offence of possessing stolen property. He reverted to his old ways in December 2010, committing some 12 offences - driving whilst disqualified twice, motor vehicle stealing twice, four burglaries and four crimes of stealing. However he showed a capacity for reform over a period of well over a year from the time he was released on parole.
   • His head sentence of 7 years' imprisonment was cumulative with a sentence of 7 months that was imposed by a magistrate for ten assorted offences. Because of the "totality principle" discussed by the High Court in Mill v R [1988] HCA 70; (1988) 166 CLR 59, it must be borne in mind that the sentence for aggravated armed robbery resulted in the appellant finding himself in prison with head sentences totalling 7 years 7 months, with no eligibility for parole until he had served a total of 5 years 7 months.
   • That parole ineligibility period was harsher than it would otherwise have been because the appellant had only been at large for 19 days before the commencement of the first of those sentences, having previously been in custody for 11 months and 28 days. By the time he became eligible for parole in August 2017, he would have been at liberty for only 19 days since January 2011.

1. I agree with the reasons for judgment of Estcourt J, and with the proposed orders. I also agree with the additional comments of Blow CJ. In my view, in all of the circumstances, an order that the appellant not be eligible for parole until he had served five years of the head sentence of seven years, makes the sentence manifestly excessive.

1. The appellant has appealed against a sentence that he states in his notice of appeal was imposed on him by Evans J on 29 February 2012.
2. The sentence was actually imposed on 21 March 2012. 29 February was the date on which the appellant pleaded guilty on complaint in the Hobart Magistrates Court to the charge of aggravated armed robbery committed on 28 January 2012 with which this appeal is concerned.
3. The appellant was sentenced by the learned sentencing judge to a term of seven years' imprisonment, with a non-parole period of five years.
4. The amended notice of appeal contains two grounds. The first is that the subsequent sentencing of the appellant's co-offender (Michael Gardner) to six years' imprisonment with a non-parole period of three years was unjustifiability disparate to the appellant's sentence. The second ground of appeal against the sentence is that it was manifestly excessive in all the circumstances.

1. The following statement of the facts of the case is taken from the comments on passing sentence of the learned sentencing judge:

"The defendant is convicted on his plea of guilty to a charge of aggravated armed robbery.

A little after 10pm on Saturday, 28 January 2012, the defendant and Michael Gardner entered the gaming area of the Queen's Head Hotel wearing home-made balaclavas, grey hooded tops and black gloves. The defendant was carrying a sawn-off rifle.

There were two customers in the gaming area, Ms Hansen and Mr Gath. Ms Hansen, who is legally blind, was sitting at a gaming machine and Mr Gath was sitting on a stool at the bar. Two staff were working in the gaming area, Ms Booker and Mr McCrossin.

As the men entered the gaming area Mr Gardner yelled out, 'This is a robbery, I want the money'. The defendant, pointed the rifle directly at Ms Hansen and Ms Booker who were at a gaming machine less than two metres away from him. He said, 'I have a gun and I will shoot'. Mr Gardner went towards the cashier's area and hit Mr Gath to the eye, knocking him off his bar stool on the way. Mr McCrossin stood back as Mr Gardner entered the cashier's position. The defendant stood on the other side of the cashier's counter and held the gun in front of him towards the customers and staff.

As Mr Gardner began filling the back pack he was carrying with cash and Keno vouchers from the till and safe, Mr McCrossin activated the duress alarm alerting staff in the bottle shop.

Mr McCrossin threw a stool at Mr Gardner and the defendant said to him, 'Do something like that again and I will shoot you'.

Having run from the gaming area, Mr McCrossin saw the defendant run from another gaming room door. Mr McCrossin grabbed the defendant and dragged him to the ground. The defendant swung the firearm over his left shoulder and hit Mr McCrossin with the barrel of the rifle to the left side of his head, causing it to bleed. Mr Gardner ran past and stopped, placed the bag he was carrying on the ground and began looking for something inside. As Mr Lynch, a staff member from the bottle shop, came to the assistance of Mr McCrossin, Mr Gardner ran at him and kicked at him, without success. Mr Gardner fled. Mr McCrossin, Mr Lynch and another member of the hotel security restrained the defendant until police arrived.

Cash and Keno vouchers to a value of $11,691 were stolen and taken away by Mr Gardner. All of the cash has been recovered and it seems that the vouchers are in the possession of the police.

Mr McCrossin required four stitches to the side of his head where the defendant struck him with the barrel of the rifle.

As a result of being hit to the eye and knocked from his stool by Mr Gardner, Mr Gath required surgery for a fractured orbital socket.

The crime has had a most adverse impact on Ms Booker. She has not returned to work since its occurrence and she is contemplating changing her career."

1. On passing sentence the learned sentencing judge, after summarising the circumstances of the crime, said:

"The defendant is 34 years of age. His convictions include innumerable convictions for crimes involving dishonesty, one conviction for robbery, many convictions for driving whilst disqualified and a number of convictions for driving with in excess of the prescribed amount of alcohol in his body. He has a number of convictions for offences against police officers, including a conviction for assaulting a police officer. He has convictions arising from being found in possession of ammunition on 6 May 2003, 27 October 2010 and 11 January 2011.

For a period of about four years and nine months prior to 5 June 2009, he was in custody on convictions in respect of many offences of dishonesty and a conviction for assault. On 5 June 2009, he was paroled and he completed that period of parole.

For one year prior to 9 January 2012, he was in custody in respect of to the order of 80 crimes of dishonesty. On 9 January 2012, he was made the subject of a drug treatment order. Such an order is an alternative to a custodial sentence. In his case, the custodial component of the sentence was seven months' imprisonment. An offender is not required to serve any part of such a custodial sentence unless it is activated because of the offender's failure to comply with a condition of the order. When a drug treatment order is made, the offender must agree in writing to comply with conditions that include a condition that the offender not commit an offence punishable by imprisonment. When, some three weeks later, the defendant committed the subject crime he breached that condition. That sentence has been invoked. He has been in custody since 28 January 2012.

The defendant's childhood was dysfunctional. He is the father of three children and has contact with them when this can be arranged. He is addicted to drugs. He attributes his latest addiction to drugs to a back injury he suffered in the course of his employment in mid-2010. His criminal conduct in respect of the matter which is now before the Court is attributed to his addiction to drugs.

Notwithstanding that the defendant's early plea of guilty can properly be categorised as an acceptance of the inevitable, it has mitigatory impact. Another clearly relevant matter is that the rifle that he had was not loaded and he was not found in possession of ammunition.

The defendant is sentenced to seven years' imprisonment cumulative upon the sentence he is currently serving. He does not have parole eligibility in relation to that sentence of seven months' imprisonment. It is ordered that the defendant be eligible to apply for parole after serving five years of the seven year sentence that I have imposed."

1. In Braslin and Cowen v Tasmania [2010] TASCCA 1, Porter J observed at [26]:

"26 ... In Sentencing in Tasmania 2nd ed (above) at 332, for the period 1990 - 2000, the tables of single count sentences show the maximum custodial sentence for aggravated armed robbery as five years, whilst that for armed robbery is eight years. The author notes at 333 [12.107], that for young offenders (18 - 21), no single sentence exceeded three years. In relation to aggravated armed robbery, since the time of the tables to the date of these crimes, there have been a few sentences of more than five years. At the highest end of the scale, there are two sentences of 10 years' imprisonment imposed on co-offenders, but which also related to a number of other offences of dishonesty. There is a third such term, but in that case someone was shot. There is one sentence of nine years' imprisonment - (a regular repeat offender) - two of eight years imposed on recidivist co-offenders, and one of 7½ years. For aggravated armed robbery and armed robbery there are 16 sentences of between three and six years, mostly in the lower end of that range, and almost invariably involving commercial premises, relatively large sums of money, and offenders with significant criminal histories. This is somewhat inconclusive but might suggest that a more punitive approach to this type of crime has been taken in this decade, compared to the last. I should note that at the other end of the scale, there have been four community service orders, of between 56 and 80 hours."

1. It is also of interest to note that the Tasmanian Sentencing Advisory Council in its consultation paper on Sex Offence Sentencing, released in April 2013, states that between 2001 and 2011, 85% of sentences for a single offence of the less serious crime of armed robbery (that is, not aggravated armed robbery), in Tasmania involved an immediate custodial sentence. The median sentence of imprisonment, that is, the sentence which falls in the middle of the range of sentences, for a single offence of armed robbery is stated to have been two years, the minimum was two months three weeks, and the maximum six years.
2. In Crosswell v Tasmania [2012] TASCCA 1, Evans J, with whom Blow J (as he then was) and Tennent J agreed, observed:

"31 The following decisions are relevant to the upper end of the range of sentences for the crime of armed robbery.

32 Devine v R (1993) 2 Tas R 458. Whilst armed with a sawn-off .22 rifle, and with a stocking over his head, Robert Devine robbed a credit union. He pointed the rifle at two tellers and two customers. He pleaded guilty to armed robbery. He had prior convictions for offences of violence, including robbery with violence and being armed with an offensive weapon. The Court of Criminal Appeal upheld his sentence of eight years' imprisonment.

33 R v McFarlane [1993] TASSC 161; (1993) 2 Tas R 201. When wearing a balaclava and armed with an unloaded sawn-off rifle, McFarlane robbed a bank. He pointed the rifle in the general direction of those present. He pleaded guilty to armed robbery. When he committed the crime he was on parole in respect of a sentence he had received when convicted of a charge of robbery with violence and four charges of robbery. The Court of Criminal Appeal, by a majority, increased his sentence from six years to eight years. At 205, Cox J (as he then was), said:

'... in a serious case of armed robbery by a person without claims to mitigation, a sentence of 6 years' imprisonment is by no means the top of an accepted tariff. ... while acknowledging the difficulty of ascertaining the point at which the border-line is passed, I am of the view that a sentence of 6 years' imprisonment did not sufficiently reflect the gravity of the crime, the need to deter its repetition by the respondent and the (slowly) growing number of other offenders, and the interest of the public in unequivocally denouncing such behaviour as wholly unacceptable to the community this Court's function is to protect.'

34 Devine v R [2003] TASSC 52. When armed with a sawn-off firearm, Robert Devine robbed a newsagency. He pointed the rifle at the newsagent and struck him on the head with its butt. He pleaded not guilty. He was convicted of aggravated armed robbery. He was a repeat offender. The Court of Criminal Appeal upheld his head sentence of nine years' imprisonment. Slicer J, at par[7], said, 'The sentence imposed was at the highest range of penalty; ....'.

35 Philpott v R [2004] TASSC 56. Prison escapees forced their way into a closed hotel and robbed those inside. The escapees' faces were covered and they were armed with guns. At the time of his escape Philpott was serving a life sentence for murder. He pleaded guilty to charges that included a charge of aggravated armed robbery and a charge of aggravated burglary. He was sentenced to eight years' imprisonment for these crimes. That sentence was upheld by the Court of Criminal Appeal. At par[7] Slicer J said that this sentence was 'at the top end of the range'.

36 Braslin and Cowen v Tasmania [2010] TASCCA 1. These appellants stole a vehicle, used it when carrying out an armed robbery at a hotel and then burnt the vehicle. They pleaded not guilty to charges of stealing, aggravated armed robbery and unlawfully setting fire to property but were convicted of those charges. Braslin had entered the hotel. He was aged 19 and had no directly relevant prior convictions. He was sentenced to four years' imprisonment. Cowen was the driver. He was aged 26 and had prior convictions for crimes of dishonesty and violence. He was sentenced to five years five months' imprisonment. The Court of Criminal Appeal upheld these sentences."

1. The appellant has an appalling record of offences of dishonesty and a prior conviction for robbery. He has served substantial periods of imprisonment in the past, including, as was noted by the learned sentencing judge in his comments, a total of four years and nine months in custody prior to 5 June 2009 in respect of many offences of dishonesty and a conviction for assault.
2. As long as 20 years ago, in Everett and Phillips v R [1994] TASSC 39; (1994) 72 A Crim R 422, Zeeman J said 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 or 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."

1. Nothing seems to have changed. As was noted by Porter J in Braslin and Cowen v Tasmania (supra) at [20] - [21]:

"20 It is not clear whether Crown counsel's reference to 'aggravated robberies' was a mistaken reference to armed robbery, or whether it was intended literally. The paragraph dealing with the issue of prevalence on page 331 of Professor Warner's text, refers generally to armed robberies, whilst the tables showing the sentencing ranges on page 332, relate to aggravated armed robbery and armed robbery. Those tables show that for the period 1999 (sic), to 2000, there were 79 single count custodial sentences for the former, with 101 custodial sentences for the latter. Less than 5 per cent of sentences for armed robbery were non-custodial. That makes a total of approximately 190 cases, and over the relevant period, (1990-2000), that is an average of 1.44 cases per month, or about 17 per year.

21 My analysis of the Court's sentencing database shows a total of 199 sentences for the two crimes, from 1 January 2001 to 26 April 2008; an average of 2.26 cases per month, or about 27 per year. (Since 26 April 2008, there have been a further total of 53 sentences (including these two), which gives a separate average of 2.65 per month; a yearly figure of nearly 32.) To have greater accuracy as a proper measure, other considerations need to be taken into account, such as population growth. However, these statistics, whilst showing nothing dramatic, do bear out an increase of some reasonable proportion in the number of cases of aggravated armed robbery and armed robbery coming before the court."

1. In my view, the present case was a serious example of an increasingly prevalent crime. It involved the infliction of serious physical and psychological injuries on others. It is clearly to be properly placed at the upper end of the sentencing range, particularly when regard is had to the appellant's record of prior convictions, already mentioned.
2. Whilst the utilitarian benefits of the appellant's early plea of guilty are to be accorded some weight, nonetheless, in circumstances where he was caught in the commission of the crime, it is difficult, if not impossible, to view the his plea as anything other than an acceptance of the inevitable.
3. Nor is the fact that the firearm was unloaded a significant mitigating factor. The fact that it was not loaded was obviously unknown to Ms Booker who was terrified by having a sawn-off rifle pointed directly at her by the appellant who accompanied his action with the words, "I have a gun and I will shoot".
4. I am of the view that the head sentence of seven years' imprisonment was towards the upper end of the range of appropriate sentences but it was nonetheless within that range in all the circumstances of the case. I can see no discernible error on the part of the learned sentencing judge in that regard.
5. However, even accepting as Nettlefold J said in Aherne v R 20/1982, at 3, that "The Court of Criminal Appeal has no charter to tinker with sentences. It sits to rectify genuine error", I am nonetheless of the view that the setting of the non-parole period at five years rendered the sentence as a whole manifestly excessive. I reject the submission of leading counsel for the respondent, Ms Hartnett, that it would have been open to the learned sentencing judge to have made no provision for parole at all.
6. The one ray of light in the appellant's antecedents was that he successfully completed a 12 months' period of parole after his release from prison on 5 June 2009, and during that time he was in regular full-time employment and was subject to regular drug testing. Those facts suggest he had been able to address, for a time at least, the drug addiction which has been the root cause of his offending for many years.
7. Also of note is that, although he failed to successfully comply with them, he did agree in writing to comply with the conditions of a drug treatment order on 9 January 2012, shortly prior to the commission of the crime the subject of this appeal. This would seem to indicate he had not abandoned all hope of tackling his addiction. I do not accept Ms Hartnett's submission that the appellant had no prospects of rehabilitation.
8. It is these matters that cause me to view the non-parole component of the learned sentencing judge's sentence as rendering the sentence as a whole, "by reason of its severity, unreasonable or plainly unjust". (A, MC v Police [2008] SASC 279; (2008) 102 SASR 151 at [88] per Kourakis J (as he then was)). The second ground of appeal succeeds in my view.
9. Porter J reviewed the High Court authorities as to disparity in Smith v Tasmania [2012] TASCCA 3 at [24] - [27], however I do not find it necessary to consider the first ground of appeal at any length given that I regard the appellant's sentence to be manifestly excessive as a whole, quite apart from any question of disparity, and I see little of any substance in the first ground of the amended notice of appeal or the submissions in support of that ground.
10. The view that I have reached would result in the appellant's non-parole period being brought more closely into line with that of his co-offender but I perceive nothing in the written submissions made by senior counsel for the appellant, Ms Jago SC, or in the careful oral submissions of junior counsel, Mr Oxley, that would justify any additional or other lessening of the appellant's overall sentence on the basis of a sense of grievance born of unjustifiable disparity.
11. On the contrary, as was pointed out by Ms Hartnett, in her helpful submissions, all else aside, the appellant was 34 years of age at the time of the commission of the crime whereas his co-offender was only 21 years and nine months old, and the appellant's criminal history was far worse than that of his co-offender.
12. The notion of parity does not compel identity of punishment, it merely precludes unjustifiable disparity. I have had regard to all of the personal circumstances of the appellant and of his co-offender and of the roles played in the offending by each of them, and I see no unjustifiable disparity in their respective sentences.

1. I would allow the appeal, but only insofar as it relates to that part of the sentencing order under appeal that limits the appellant's eligibility for parole.
2. The order I would make is that the order that the appellant be eligible to apply for parole when he has served five years of his sentence be quashed, and in its place it be ordered that he not be eligible for parole until he has served one-half of the period of his sentence.