Supreme Court of Tasmania|1993-12-22|Before: Zeeman J, Cox J

R v Allan Kenneth McFarlane [1993] TASSC 161; (1993) 2 Tas R 201 (22 December 1993)

IN THE FULL COURT OF THE COURT OF CRIMINAL APPEAL OF TASMANIA

Solicitors for appellant: Director of Public Prosecutions

Solicitors for respondent: Wallace Wilkinson Webster

2 Appeal allowed.

3 Sentence of 6 years' imprisonment quashed and one of 8

years' imprisonment with effect from 13 May 1993

substituted.

COX J This is an application by the Attorney-General for leave to appeal against a sentence of six years imprisonment imposed on 26 May 1993 upon the respondent following his plea of guilty to the crime of armed robbery committed by him in November 1992. The grounds of the application and a summary of the facts are set out in the reasons for judgment of Zeeman J which I have had the opportunity of reading and I do not stay to repeat them. However, there are some additional facts which I regard as being worthy of some emphasis. Zeeman J cites the respondent's parting words to his victims but these were but a small sample of the swearing in which he indulged. The learned judge passing sentence was referred to statements of witnesses and parts of those statements were read to him. It is clear from the material placed before his Honour that the respondent while committing the crime subjected those present in the banking chamber, whether the staff or customers, to an almost constant stream of foul language, at times abusive. To one teller complying with demands that he fill a bag up with money and who was apparently putting coins into it he said "Don't get fucking smart with me. Fill the bag with fucking big ones". Another example was the statement of a young student customer who said that while lying on the ground at the offender's command, he heard him say "Don't be a fucking hero and try and follow me out or I'll hurt someone". The respondent, of course, was not facing sentence for using bad language, but in appreciating the atmosphere of fear he created and, indeed, needed to create in order to achieve his purpose when he, in fact, had no effective weapon to carry out his threats, what he said should be taken into account. It is little wonder that one of the tellers, his Honour was told, had stated to the police "I was absolutely petrified, terrified and I panicked".

2. The second matter upon which I would place some emphasis is the effect of the incident upon the teller who later suffered a miscarriage. The medical evidence to which his Honour was referred mentioned that this lady and her husband had had some difficulty in producing a pregnancy and that it was a matter of extreme regret to them that a miscarriage occurred. The doctor opined: "That the mental stress caused by the robbery did indeed contribute to the onset of abnormal vaginal bleeding resulting in a miscarriage ... and that (her) present mental state is not 100 per cent normal and that this too has been contributed to by the experiences she had during the robbery". His Honour on passing sentence said:

"I have been told and it has not been disputed that the

mental stress suffered by one member of the staff as a

result of this crime played a part in her suffering a

miscarriage and developing what was described as an

abnormal mental state. But the extent to which this

crime brought about those consequences and the extent to

which other factors unrelated to this crime did so is not

known."

3. In my view it is an inescapable conclusion, although his Honour did not make a formal finding, that the respondent's actions contributed in some way to the mental, emotional and physical sufferings of that victim.

4. Another factor of some moment is the degree of preparation and deliberation involved. This was no spur of the moment enterprise. In his interview with police the respondent said that he had thought about robbing a bank the previous day, that on the day of the robbery he had sawn off the barrel of a rifle which he had found at his home at Caveside when he moved in and that he had then driven to Launceston and selected the premises where the crime was committed. He deliberately chose to depart from his previous modus operandi of pretending to have a weapon under a piece of clothing or the like by taking and displaying a sawn-off rifle so as to reduce the chances of his detection. In the course of the interview, this exchange occurred:

"Q Allan why did you take the weapon in there even though

you were saying to us that it doesn't work - didn't work?

A Because last - in Adelaide last offence that I've had

with robbin' banks and I didn't use a firearm and I

figured if I did use a firearm I might as well ring up

the police and tell them it was me because as soon as

they punch you in the computer, someone robs a bank

without using a firearm well you're gonna get six foot

tall you're gonna get not usin' a firearm and you're

gonna get Allan McFarlane."

5. Accepting this to be his purpose, it demonstrates a calculating mind weighing up the risks of detection before embarking on a criminal enterprise of a more serious nature than one in respect of which he had previously been convicted and sentenced to a lengthy term of imprisonment for which he was still on parole.

6. Robberies, whether armed or not, vary like all crimes in the degree of their seriousness. Where a financial institution such as a bank is selected as the target because the spoils are likely to be considerable, those threatened by an intruder may well be more apprehensive of his carrying out the threat. The very fact that the stakes may be perceived to be high is an added inducement to compliance with the demand. Staff and possibly customers will have to be overborne. 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. In some cases, especially of elderly customers, the consequences could be very serious. In this case the effect on several of those present was not inconsiderable and in the case of one, although other factors may have played a part, especially serious. In my opinion the gravity of the respondent's offence cannot be minimised.

7. This crime is not merely an offence against the bank which owned the substantial amount of money stolen and dissipated and which needs to take expensive security precautions to avoid repetition, nor against its staff whose resistance of necessity had to be overborne, but is one against such members of the public who were fortuitously at the scene. To my mind it was very much a crime against the public at large and in view of the prevalence of crimes of this nature, it merited a sentence which reflected the sense of public outrage its commission excites. There will always be debate as to which of the aims of punishment should predominate in any given situation (see generally Professor Warner's Sentencing in Tasmania Chapter 11). But given the matters relevant as suggesting the appropriateness of a heavy sentence as enumerated by my brother Zeeman under Ground 7 in his reasons for judgment and the absence of any features which could be said to be mitigatory in any significant degree, it is my view that the crime called for a sentence of deterrence, both general and personal, and of denunciation. The observations of this Court in such cases as Osborne v R, 58/1970, Burke and Cook v R, 67/1976 and Devine v R, 70/1993 all support the view that in a serious case of armed robbery by a person without claims to mitigation, a sentence of six years imprisonment is by no means the top of an accepted tariff. In any event, I agree with the observations of Wright J in R v Dowie [1989] TASSC 44; (1989) Tas R 167 at pp185-186 that any perceived tariff should not be permitted to overshadow the sentencer's own evaluation of the gravity of the offence, as I have previously had occasion to observe (Lyons v R, 66/1993).

8. I agree with the reasons for judgment prepared by Zeeman J in respect of Grounds 1-6 but I find myself unable to agree with him in respect of Ground 7 which alleges that error is to be inferred from the fact that the sentence is, in all the circumstances of the case, manifestly inadequate. With respect, while acknowledging the difficulty of ascertaining the point at which the border-line is passed, I am of the view that a sentence of six 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.

9. I think this is a clear case in which the Attorney-General should be granted leave to appeal. Generally, the principles upon which such applications should be considered are dealt with by this Court in R v Dowie (supra) and by the Federal Court in R v Tait (1979) 46 FLR 386. At pp389-390 the Court (Brennan, Deane and Gallop JJ) said:

" Although the existence of error is the common ground

which entitles the appellate court to intervene in

appeals by the Crown and by a defendant (cf R v Butler

[1971] VicRp 109; (1971) VR 892; R v Liekefett; Ex parte Attorney-General

(1973) Qd R 355 there would be few cases where the

appellate court would intervene on an appeal against

sentence to correct an alleged error by increasing the

sentence if the Crown had not done what was reasonably

required to assist the sentencing judge to avoid the

error, or if the defendant were unduly prejudiced in

meeting for the first time on appeal the true case

against him."

10. Here the reverse is the case. The Crown exercised its right under the Criminal Code, s386(11) to address on sentence and without presuming to nominate an appropriate one, certainly urged with vigour the imposition of a sentence not constrained by what might have been perceived as the current tariff of the Court. I venture to repeat what I said in R v Causby (1984) Tas R 54 at 66:

"The public interest requires in the circumstances of

this case that the gravity of a crime such as this ought

to be marked with a penalty which is not manifestly

inadequate. That is a sufficient basis to justify the

grant of leave to the applicant and the substitution of a

sentence considered appropriate."

11. In my opinion, the Court should grant the Attorney-General's application, allow the appeal and substitute a sentence of eight years' imprisonment from 13 May 1993 when the plea was entered and from which date the respondent has been in custody.

CRAWFORD J The facts which were before the learned sentencing judge and the reasons given by his Honour for sentencing the respondent to six years imprisonment upon his plea of guilty to one count of armed robbery are comprehensively stated in the reasons for judgment of Zeeman J and no purpose is served by repeating them. I have concluded that the sentence was manifestly inadequate and for that reason leave to appeal should be granted and the appeal allowed. I agree with Cox J that a sentence of eight years imprisonment from 13 May 1993 should be substituted. I will deal with all of the grounds of the application.

2. "Ground 1 His Honour erred in that he gave undue weight to the Respondent's assertion that the crime was committed under personal and domestic pressure."

3. All the learned sentencing judge said in this regard was that he took into account the accused committed the crime under personal and domestic pressure. His Honour was entitled to take those matters into account. What weight was given to them was not stated and it is therefore impossible to conclude that undue weight was given to them. The ground must fail.

4. "Ground 2 His Honour erred in that he gave any or any due weight to the Respondent's assertion that the crime was committed under financial pressure."

5. For the same reasons this ground must fail. All his Honour said in this regard was that he took into account that the accused committed the crime under financial pressure.

6. I comment that although his Honour was entitled to take this factor into account the respondent was not entitled to any significant reduction in the sentence as a result. I adopt what was said by Dowsett J in Ryan (1988) 33 A Crim R 288 at 292 "that the motivation, namely financial need coupled with inability or unwillingness to meet financial need by honest labour are the compelling reasons for most crimes of this kind". Armed robbery is rarely committed by a person whose financial circumstances are sound. There may be cases where some particular financial pressure might be especially relevant as a mitigating factor but in this case, although the learned sentencing judge was entitled to take the factor into account, it should not have had any significant effect in reducing the sentence from what would otherwise have been appropriate.

7. "Ground 3 His Honour erred in that he failed to find that sentences being imposed by the Supreme Court for crimes of this nature were not operating as a sufficient deterrent to potential offenders including especially potential offenders from interstate."

8. The learned sentencing judge accepted that there had been a steady increase in the incidence of crimes of this nature since 1989, as was asserted by the Director of Public Prosecutions, and his Honour regarded that increase as a relevant factor. But he was not satisfied that the sentences which were being imposed for such crimes were not operating as a sufficient deterrent to potential offenders including potential offenders from interstate. In saying this it is plain that his Honour was not ignoring the fact that notwithstanding the current level of sentences for armed robbery the crime has continued to be committed. In an absolute sense the increasing number of offenders indicated that the prevailing level of sentencing was not operating as a deterrent, but there is no rule of law which requires that the level of sentences for particular crimes should be increased or decreased with fluctuations in the incidence of their commission. The relationship between increased sentences and deterrence was discussed by Dowsett J in Ryan (1988) 33 A Crim R 288 at 293 and I respectfully agree with what his Honour had to say.

9. In any event it must be kept in mind that the task of the sentencing judge was to determine the appropriate sentence for this offender for his offence and it does not follow that a failure (if there was one) to recognise that other courts had been imposing inadequate sentences (almost all of which were lower than the sentence imposed by his Honour) was a material error justifying the setting aside of the sentence.

11. "Ground 4 His Honour erred in giving any or any due weight to the Respondent's assertion that he "is" and, more particularly, "was" remorseful."

12. To some unascertainable extent the learned sentencing judge took these matters into account. He said: "I accept that the accused is and was remorseful. He made full admissions to the police and pleaded guilty at the first opportunity". As I understand the submissions of the Director to this Court, it was not submitted that the respondent made no expressions of remorse but such expressions "should not have been given the weight attributed to them by his Honour". Such a complaint is similar to the one made by grounds 1 and 2. It is impossible to know what weight his Honour gave to the matter and accordingly no error has been established.

13. "Ground 5 His Honour erred in that he failed to impose upon the Respondent a sentence which would act as a deterrent to the Respondent."

14. In most cases it would be impossible for a judge to know whether the sentence he or she was imposing would in fact deter the prisoner. In so far as the ground might be intended to express that taking into account the need to deter the respondent the sentence was inadequate, it could have no hope of success unless ground 7 is established.

15. "Ground 6 His Honour erred in that he failed to impose a sentence upon the Respondent which would act as a deterrent to other potential offenders."

17. "Ground 7 His Honour erred in that he imposed a sentence which was manifestly inadequate having regard to all the circumstances of the case."

18. I think the sentence of six years imprisonment was manifestly inadequate for a combination of reasons. Although his previous convictions in South Australia for similar crimes were all recorded on the same day and the crimes were committed in the space of twenty-two days, they included four robberies and one robbery with violence, all of them being successful because he pretended to be armed. Three of those crimes were committed against banks, one on a post office and the other on commercial premises. Particularly because this was his sixth robbery and the fourth committed against a bank six years imprisonment, in the circumstances of this crime, was plainly insufficient.

19. For his earlier crimes he was sentenced to terms of imprisonment varying from four to seven years and a non-parole period of five years was imposed. Those sentences apparently were of little deterrence for him for, having been released on parole late in 1990, he committed this armed robbery about two years later. It is material that, having come to Tasmania to avoid the conditions of his parole, he committed the crime while still on parole. A sentence of substantial personal deterrence was therefore demanded.

20. On this occasion the crime was arguably worse than his previous crimes because he used a sawn-off firearm. That it may not have been loaded is not of much significance, for those being robbed had no reason to know and they were clearly terrified, one of them being significantly affected psychologically for some time thereafter.

21. I agree with Burbury CJ in Osborn v R 58/1970 that armed robbery is one of the most serious crimes in the calendar. I would add that armed robbery of a bank should generally be considered one of its worst forms. If his prior convictions had included only one robbery against one bank a sentence of six years imprisonment would have been justified.

22. It would be obvious to all who work in the criminal courts, and statistics put before the learned sentencing judge supported it, that there has been a steady increase in the commission of robberies and armed robberies in recent years. "If a particular offence becomes prevalent, then that may well become a more important consideration than it previously was". Ryan (1988) 33 A Crim R 288 per Dowsett J at 293. Recently this Court accepted that in Devine v R 70/1993. Counsel for the respondent correctly submitted that six years imprisonment is at the top end of the range of sentences for armed robberies imposed in this State in recent years. But it was pointed out by the court in Devine at p6 that each case calls for an individualised exercise of the sentencing discretion and many factors have to be taken into account. The most important factors in this case are the seriousness of the crime both generally and specifically, the respondent's record of convictions for five robberies of which three were committed against banks and the circumstance that this crime was committed by him when at liberty on parole from sentences for similar crimes. In all these circumstances six years imprisonment was manifestly inadequate.

23. The application for leave to appeal should therefore be granted and the appeal allowed. The sentence of six years imprisonment should be set aside and there should be substituted for it a sentence of eight years imprisonment to commence on 13 May 1993.

ZEEMAN J This is an application by the Attorney-General for leave to appeal against a sentence of six years' imprisonment imposed upon the respondent upon his plea of guilty to one count of armed robbery.

2. The grounds upon which the applicant seeks leave to appeal are as follows:

"1 His Honour erred in that he gave undue weight to the

Respondent's assertion that the crime was committed under

personal and domestic pressure.

2 His Honour erred in that he gave any or any due weight to

the Respondent's assertion that the crime was committed under

financial pressure.

3 His Honour erred in that he failed to find that sentences

being imposed by the Supreme Court for crimes of this nature

were not operating as a sufficient deterrent to potential

offenders including especially potential offenders from

interstate.

4 His Honour erred in giving any or any due weight to the

Respondent's assertion that he 'is' and, more particular,

'was' remorseful.

5 His Honour erred in that he failed to impose upon the

Respondent a sentence which would act as a deterrent to the

Respondent.

6 His Honour erred in that he failed to impose a sentence

upon the Respondent which would act as a deterrent to other

potential offenders.

7 His Honour erred in that he imposed a sentence which was

manifestly inadequate having regard to all the circumstances

of the case."

3. The facts as they were stated to the learned sentencing judge may be summarised as follows. At about 2.45pm on 23 November 1992 the respondent, who was wearing a balaclava and carrying an unloaded sawn off rifle, went to the Invermay branch of the Trust Bank which was open for business. Three tellers were at their stations. One of the tellers had just attended to a customer who was making his way out of the bank. A fourth bank officer was at work seated at a desk behind one of the tellers. The branch manager was in his office interviewing a customer. As the respondent entered the bank he yelled out "This is an armed hold up". He pointed the rifle in the general direction of the persons in the main banking chamber and told them to get on the floor. They complied. The applicant handed a plastic bag to one of the tellers and told him to fill it up. The teller obtained cash from one of the teller's stations and put it into the bag. The respondent then told him to "go to the next one." The teller went to the next teller's station and obtained more money which he put into the bag. At the respondent's direction the process was repeated at the third station. The total amount of cash taken by the respondent was $11,698.81 and none of that has been recovered. Whilst the bag was being filled with money the respondent was yelling and brandishing the rifle. Before leaving with the money he said:

"Don't try and do nothing to stop me, stay down on the floor,

don't fucken go outside because I'll fucken come back. If I

see yous get up, or go near the window I'll fucken come back,

I mean it, I'll fucken come back and shoot yous."

4. The episode was undoubtedly a frightening experience for all the persons who were in the bank. The nature of the experience was graphically portrayed in the photographs taken by a security camera, which photographs were placed before the learned sentencing judge. All members of staff were affected by their experience. Counselling was provided. One female bank officer was particularly affected by the episode. The episode caused her immediate considerable mental anguish. She was pregnant at the time and suffered a miscarriage some weeks afterwards. Prior to her miscarriage she had been improving gradually. When she suffered her miscarriage her psychological condition deteriorated to the extent that she was referred to a psychiatrist.

5. On 13 May 1993 the respondent was spoken to by police officers at Sisters Beach and conveyed to a police station. During the journey to the police station the respondent made statements indicating that he had committed the hold-up. He was formally interviewed. During the course of the interview he admitted that he had committed the robbery and offered some explanations for committing it. In substance those explanations were repeated during the course of the plea in mitigation.

6. At the time he committed the crime the respondent was aged 31. He had come from South Australia where he had been convicted of various offences from time to time. Prior to 12 August 1987 he had been convicted of various drug offences, offences of dishonesty and driving offences. In 1981 the respondent was sentenced to 2 1/2 years' imprisonment for a drug offence. With that exception, the penalties imposed upon the respondent prior to 12 August 1987 suggest that the offences for which they were imposed were of a relatively minor nature. On 12 August 1987 the respondent was sentenced by the Supreme Court of South Australia in respect of one count of robbery with violence and four counts of robbery, the relevant crimes having been committed between 31 October 1986 and 21 November 1986. All of those crimes involved the respondent going to various business premises where he conducted himself in such a way that a staff member believed that he was armed, leading such staff member to comply with his demand for money. The total amount obtained by the respondent by means of these crimes was about $20,000. On one of those occasions the respondent assaulted a bank teller whilst demanding more money. Separate sentences of imprisonment, ranging in length from 4 years to 7 seven years, were imposed. All sentences were made concurrent so that effectively the respondent was sentenced to a term of 7 years' imprisonment.

7. The respondent was released on parole late in 1990. The conditions of his parole included conditions which required him to abstain from the consumption of intoxicating liquor, not to enter upon licensed premises and to comply with curfew conditions. The respondent did not find these conditions to his liking and endeavoured to persuade the South Australian Parole Board to modify them. He was unsuccessful in those endeavours. In order to avoid enforcement of the terms of his parole the respondent moved to Tasmania not long after his release. His counsel said that he "absconded", which appears to suggest an acceptance that his departure from South Australia was a breach of parole. The respondent was still on parole when he committed the armed robbery.

8. The learned Director of Public Prosecutions, who appeared before the learned sentencing judge, addressed his Honour with respect to sentence, as authorised by the Criminal Code, s386(11). He submitted to the learned sentencing judge that his Honour ought to take into account the effect of crimes of armed robbery and the like upon the community and in particular upon those persons who, in the course of their employment, handled large sums of money and therefore were exposed to the risk of being confronted by persons carrying and using firearms as a means of unlawfully obtaining access to such money. His Honour was given the following specific information:

1 That between February 1990 and November 1992 9 branches of

the Trust Bank of Tasmania had been the subject of armed hold

ups.

2 That the incidence of armed and aggravated armed robberies

in Tasmania was increasing as indicated by the following

figures:

1989-1990 20

1990-1991 29

1991-1992 29

1992-1993 (to 20 May 1993) 35

3 That the incidence of aggravated armed robbery, aggravated

robbery, armed robbery, attempted armed robbery, attempted

aggravated armed robbery and attempted robbery in Northern

Tasmania was increasing as indicated by the following

figures:

1989 12

1990 13

1991 15

1992 33

1993 (to 20 May 1993) 9

4 That substantial costs are incurred by banks in endeavours

to protect themselves against armed robberies, indicated by

the following:

(a) the cost of fitting out an ordinary branch with a basic

security system was $14,000;

(b) the Trust Bank expected that in 1993 it would expend

$150,000 to upgrade security in its branches;

(c) the Trust Bank employed security guards at an annual

cost, insofar as the Invermay branch was concerned, of

between $4,000 and $5,000 per annum;

(d) the Trust Bank employed a full time post traumatic

incident counsellor at a cost of $32,000 per annum to provide

counselling to staff involved in hold ups and a branch

visitation programme.

9. In the course of the submissions on sentence which he made to the learned sentencing judge, the learned Director also made specific reference to the fact that the respondent had committed the crime whilst on parole in respect of sentences imposed for similar crimes and submitted that that indicated that those sentences had not had a sufficient personal deterrent effect. The learned Director submitted that it was appropriate that there be imposed upon the respondent a sentence which was personally and generally deterrent and one longer than that which previously had been imposed upon him.

10. In mitigation, counsel for the respondent put to his Honour the following matters. At the time of the commission of the crime the respondent was a single man aged 30 who was living in a de facto relationship. He had had a difficult childhood in that his step-father was a violent person. As a result he left home when he was aged 14, spending some 4-5 years in youth shelters in South Australia. He became addicted to drugs. He committed the first of the robberies in South Australia in order to obtain sufficient money to purchase drugs so that he could overdose. He unsuccessfully attempted suicide on the day following this robbery. Why the further robberies were committed was not explained. When the respondent came to Tasmania after his release on parole he took up residence in Deloraine and commenced to live in a de facto relationship. Counsel stated that it was the respondent's intention to start a new life. Having been unsuccessful in his endeavours to obtain employment in the Deloraine district he moved to Caveside where he obtained casual work as a farm hand, earning small sums of money. The family encountered financial difficulties. The relationship between the respondent and his de facto wife deteriorated as a result of financial pressures. His de facto wife suffered from medical problems. The financial problems and his de facto wife's medical problems resulted in the respondent becoming depressed and feeling inadequate. Counsel told the learned sentencing judge that the respondent committed the crime so as to obtain money to meet pressing financial obligations.

11. In the course of his comments upon passing sentence the learned sentencing judge accepted that the respondent had not intended to harm any person at the bank and that the rifle which he was carrying was not capable of being fired, but also observed that those facts were not known to the persons in the bank and that the experience was very frightening. His Honour referred to the mental stress suffered by one staff member, to the convictions in 1987 and the respondent's release on parole in 1990. His Honour then observed as follows:

"I note that the number of crimes of this nature has been

steadily increasing statewide over the period since 1 July

1989. In the northern part of the state there was a large

increase in the number of such crimes in the calendar year

1992 but otherwise it could not be said that the figures

referred to by the Crown for the years 1989 to the present

show a steady increase comparable to that evident in the

state as a whole. However as the impact of crimes of this

nature is felt throughout the state I regard the statewide

increase as a relevant factor. However I am not satisfied

that the materials before me and the matters of which I am

entitled to take judicial notice are such as to sustain the

submission made by the Crown that the sentences which are

being imposed by this Court for crimes of this nature are not

operating as a sufficient deterrent to potential offenders

including especially potential offenders from interstate.

In addition to the matters to which I have already referred I

take into account that the accused committed this crime under

personal, domestic and financial pressure. I accept that the

accused is and was remorseful. He made full admissions to

the police and pleaded guilty at the first opportunity.

However I also take into account the need to deter other

potential offenders, the particular need to deter this

offender, the financial consequences which crimes or the

threat of the commission of crimes like this can have for

institutions like banks and the effect which crimes like this

have on those who are immediately involved and I take into

account the disquiet and fear that such crimes engender in

the community generally. The accused is sentenced to six

years' imprisonment commencing on 13 May 1993."

12. I now deal with the individual grounds upon which the applicant seeks leave to appeal.

13. Ground 1: There is nothing in the learned sentencing judge's comments on passing sentence to indicate what weight he gave to the respondent's assertion that the crime was committed under personal and domestic pressure. Counsel for the applicant accepted that the learned sentencing judge made no error in proceeding upon the factual basis that the respondent was the subject of personal and domestic pressure at the time that he committed the crime. The learned sentencing judge's comments do not disclose what weight he gave to those matters and it is therefore not possible to conclude that his Honour gave undue weight to them unless the sentence imposed itself leads to the conclusion that undue weight must have been given to those matters. That matter is appropriate for consideration in the context of ground 7 and ground 1 ought to be treated as being no more than a particular of that ground. It requires no further separate consideration.

14. Ground 2: Counsel for the applicant accepted that it was open to the learned sentencing judge to conclude that the respondent had committed the crime whilst subject to financial pressures. Plainly that was correct. That being so, it cannot be said that his Honour erred in giving some weight to that matter. It was a relevant matter. Whether undue weight was given to the matter ought again to be treated as a particular of ground 7 so that it is unnecessary to give this ground further consideration.

15. Ground 3: This ground complains of a failure on the part of the learned sentencing judge to find as a fact that sentences previously imposed in this state for crimes of armed robbery and the like had not operated as a sufficient deterrent to potential offenders, particularly potential offenders from interstate. I understand that the reference to offenders from interstate was intended to be a reference to persons from interstate, minded to commit crimes of this nature, who come to Tasmania to commit such crimes because more lenient sentences are imposed in this state. As to such offenders, there was no material before the learned sentencing judge as to the number of persons convicted of armed robbery in Tasmania who had travelled to this state for the purpose of committing this crime.

16. It was suggested that sentences imposed in other states for crimes of this nature tended to be more severe than those imposed in this state so that those minded to commit such crimes would be tempted to come to Tasmania to commit them. There was no material before the learned sentencing judge as to the level of sentences in other jurisdictions. In any event, whilst eligibility for parole and the availability of remissions and early release are not relevant to a determination of an appropriate head sentence, the different provisions for such matters in various jurisdictions would be relevant to making a true comparison between various jurisdictions. If a judgment is to be made as to the deterrent effect of sentences imposed in various jurisdictions their real effect would need to be known. There was no basis upon which his Honour could have made the finding which it is submitted he ought to have made in relation to interstate offenders. It ought to be observed that although it could be said that the respondent had come from interstate, there was an interval of some years between his arrival and the commission of the crime, so that it could not reasonably be said that he fell into a category of persons who had come to Tasmania to commit such crimes because the likely punishment, if apprehended, would be significantly less severe.

17. It was perfectly appropriate for his Honour to primarily have regard to the figures for armed and aggravated armed robberies committed within the state rather than by reference to any geographical region within Tasmania. Those figures indicated that an increasing number of those crimes was being committed each year, but that the rate of increase was not dramatic. The material before the learned sentencing judge did not require him to make the finding which ground 3 suggests he ought to have made. That ground is not made out.

18. Ground 4: The learned sentencing judge accepted that the respondent was, and had been, remorseful. This ground does not complain of his Honour accepting that that was the case, but complains that some weight was given to it. Evidence of remorse always is a relevant matter. The weight to be given to it will vary from case to case. The learned sentencing judge's comments upon passing sentence do not indicate what weight he attached to this matter. Whether his Honour attached undue weight to this matter can only be judged by reference to the actual sentence imposed. This ground is no more than a particular of ground 7 and does not require further separate consideration.

19. Grounds 5 and 6: In his comments on passing sentence the learned sentencing judge accepted that the sentence to be imposed needed to be one which contained elements of general and personal deterrence. Whether the sentence imposed sufficiently reflected this undoubted need only can be judged by reference to the actual sentence. Again these grounds are particulars of ground 7. They do not require separate consideration.

20. Ground 7: The sentence imposed by the learned sentencing judge was at the upper end of the range of sentences imposed for crimes of this nature in recent years. It seems that only one longer sentence has been imposed in recent times, that being a sentence of 8 years' imprisonment which was upheld by this Court (Devine v R, 70/1993). However, as was observed by this Court in that case (at 6):

"The so called tariff, or range of sentences imposed in the

past is but one factor to be taken into account in the proper

exercise of the discretion. It does not set limits on the

sentencing discretion. Limits are set by the Code."

21. The following matters were particularly relevant as suggesting that it was appropriate that a heavy sentence be imposed on the respondent:

(a) the inherent nature of the crime involving the use of a

firearm likely to engender fear in those confronted by the

respondent and having the potential to cause grave

psychological harm and actually causing some psychological

harm;

(b) the undoubted prevalence of criminal conduct of this type

(which is a distinct factor from an increase in prevalence),

being criminal conduct which by its very nature tends to

cause grave psychological harm to some of its victims and the

prevalence of which imposes substantial financial burdens on

banks and others in like position, the latter burdens

ultimately being borne by the community as a whole;

(c) the relevant previous convictions of the respondent when

substantial terms of imprisonment had been imposed which

sentences apparently did not operate as a sufficient personal

deterrent;

(d) the respondent committed the crime whilst on parole in

respect of sentences for crimes of a similar nature; and

(e) none of the quite substantial sum of money taken had been

recovered and no restitution had been made.

22. The matters which, it was submitted, went in mitigation may be summarised as follows:

(a) the rifle was not capable of being discharged;

(b) the respondent used no actual physical violence;

(c) the respondent made no unqualified threats of violence or

death towards any person in the bank;

(d) the respondent pleaded guilty at the first opportunity

and showed genuine remorse;

(e) the crime was committed whilst the respondent was subject

to domestic and financial pressures;

(f) the respondent was in a stable relationship having long

term prospects even after his apprehension; and

(g) the prior convictions for similar crimes related to

crimes committed over a 3 week period when the respondent was

depressed and attempted suicide.

23. It is appropriate to deal with each of the matters put as going in mitigation of penalty. The fact that the rifle was incapable of being discharged ought to be given little, if any, mitigatory effect. As the learned sentencing judge correctly observed, that fact was not known to any of the persons in the bank. The respondent brandished the rifle intending that bank officers would believe that it was, or might be, loaded and capable of being discharged and that he might discharge it if his demands were not complied with. The use of a firearm which is actually loaded might be said to add to the potential danger of the situation and therefore be an aggravating factor. Beyond that the fact that the rifle was incapable of being discharged was of no relevance.

24. The absence of any actual physical violence ought not be regarded as a mitigating factor. Had the respondent actually caused bodily harm to any person, then his crime would not have been armed robbery but aggravated armed robbery, which ought to be regarded as a more serious crime than armed robbery. The respondent did make threats of violence in the event that bank staff did anything to stop him. The fact that those threats were qualified in the sense that the respondent threatened that he would inflict physical harm only in the event that the bank officers failed to comply with certain of his demands is hardly to the point. The pressures to which the respondent was subject provide some explanation for the commission of the robbery, but it ought to be observed that he forthwith expended the bulk of the moneys which he took, not in the discharge of debts, but in the acquisition of a motor cycle. The whereabouts of that motor cycle was not the subject of any explanation. Very little weight ought to have been attached to the respondent's financial and domestic pressures.

25. As to the de facto relationship, I observe that it had ceased before the imposition of sentence, the learned sentencing judge having been informed that the respondent had commenced living in a de facto relationship with another woman. There was no basis for concluding that either de facto relationship was likely to operate as a factor tending to ensure that the respondent did not offend again. If the effect of imprisonment upon the respondent's de facto spouse was intended to be relied upon, the answer is to be found in what the courts have frequently said, namely that, generally speaking, it is inappropriate to ameliorate punishment because of the impact of a sentence upon the members of a prisoner's family. The present case has no special features making it appropriate to proceed in a different way.

26. The matters relating to the previous convictions for robbery mean little more than that substantially those convictions ought to be treated as one conviction for a series of conduct over a quite short period of time. It is hardly a matter which goes in mitigation. It is a matter which properly explains the true nature of the previous convictions. In summary, the matters urged in mitigation counted for very little in the circumstances of this case. It was a case where matters personal to the respondent substantially were required to yield to other relevant sentencing considerations.

27. In Osborne v R, 58/1970, a case in this Court where the applicant sought to appeal against a sentence of 6 years' imprisonment in the case of an armed robbery in which he had cowed a family with a loaded firearm without using any physical violence, each of Burbury CJ and Crisp J plainly thought that the sentence was rather lenient although within the range and Chambers J considered that the sentence was "in no way excessive". Subsequently that case has been referred to with approval by this Court in Burke and Cook v R, 67/1976 and Devine v R (supra).

28. I have concluded that the factors present in this case suggest that the sentence imposed was quite lenient and ought not to be seen as any form of benchmark for sentences imposed for crimes of this nature committed in circumstances such as the present. That, however, does not provide sufficient reason for this Court to intervene. The relevant principles are those laid down by the Federal Court of Australia in R v Tait (1979) 46 FLR 386 at 387-8, which were adopted by this Court in R v Dowie [1989] TASSC 44; (1989) Tas R 167. Not without some hesitation I have concluded that the sentence imposed is not so inadequate as to manifest error. I have already concluded that the other grounds of appeal, which allege specific error, have not been made out.

29. Having concluded that the sentence imposed was a quite lenient sentence, but not one which is capable of being categorised as one indicative of error, it is appropriate to say that persons who in the future commit crimes of armed robbery and the like ought not to assume that a sentence of 6 years' imprisonment is regarded as being indicative of the tariff. Doing what Bray CJ (with whom the other members of the court concurred) considered as appropriate in Yardley v Betts (1979) 22 SASR 108 at 114, I would extend a warning to those who might be minded to commit crimes of this nature in the future that they may well expect sentences substantially heavier than that imposed upon the present respondent.

30. I would grant leave to appeal but dismiss the appeal.

R v Allan Kenneth McFarlane [1993] TASSC 161;

At a glance

Court

Decision date

Before

Source

Judgment (80 paragraphs)

R v Allan Kenneth McFarlane [1993] TASSC 161; (1993) 2 Tas R 201 (22 December 1993)

Parties

Cases Cited (3)