Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Purpose of sentence - Deterrence - Armed robbery - General deterrence significant element in exercise of sentencing discretion.

Everett and Phillips v R (1994) 72 A Crim R 422; O'Brien v R [2000] TASSC 117; Devine v R (1993) 2 Tas R 458, referred to.

Judgment Number: [2003] TASSC 40

2 In lieu thereof, the respondent is sentenced to two years' imprisonment to commence on 15 November 2002.

3 The execution of the last six months of that sentence is suspended upon condition that the respondent be of good behaviour for 18 months after his release from prison.

4 The respondent is not eligible for parole until the expiration of nine months from 15 November 2002.

1 The respondent to this appeal pleaded guilty to one count of armed robbery. The crime was committed on 10 November 2002 at the KFC outlet at Bridgewater on the outskirts of Hobart. The respondent was sentenced to 12 months' imprisonment to take effect from 15 November 2002, the day he went into custody. An order was made that the respondent not be eligible for parole until the expiration of six months from that date.

2 The Attorney-General appealed against that sentence upon the single ground that it was manifestly inadequate. At the conclusion of the hearing of the appeal on 27 May 2003, the Court made the following orders:

2 In lieu thereof, the respondent is sentenced to two years' imprisonment to commence on 15 November 2002.

3 The execution of the last six months of that sentence is suspended upon condition that the respondent be of good behaviour for 18 months after his release from prison.

4 The respondent is not eligible for parole until the expiration of nine months from 15 November 2002.

3 At the time the Court made that order, I said that I would publish my reasons for joining in the making of that order at a later date. These are those reasons.

4 At the time of the commission of the crime, the respondent was one month short of his twenty-first birthday. On the day of the robbery, the respondent met with two older co-offenders who have yet to be tried for their alleged part in the commission of the crime. The respondent discussed with the co-offenders the fact that he was short of money and that he wanted to buy Christmas presents for his "de facto and the children". The three men agreed to commit an armed robbery. One of the other two men obtained a shotgun and organised a driver. After the gun had been obtained, that co-offender and the respondent cut down its barrel.

5 At about 9.45pm, the respondent entered the KFC outlet alone. He was carrying the sawn-off shotgun. He pulled a balaclava over his head and face. There were no customers in the shop at that time. Four young members of staff were on duty. The gun was not loaded but, of course, the victims of the robbery did not know this. Waving the gun about, the respondent demanded money. He put a backpack on the counter and one of the staff put $1,235 in it. Whilst he was doing this, the respondent continued to wave the gun about and said to hurry up and that if he got angry someone might get hurt.

6 The respondent took the backpack and the money and made good his escape with the others in the getaway car. A few days later, he was arrested. Initially he denied any involvement in the commission of the crime, but later made a full confession to police and co-operated with them in their inquiries.

7 Fortunately, two of the staff in the outlet suffered only relatively minor psychological sequelae as a result of the robbery and the other two recovered after a single counselling session.

8 The respondent had a criminal record at the time of imposition of sentence. Over the preceding five years he had been convicted of aggravated burglary or burglary (8), stealing (8), receiving (1), and other miscellaneous offences and crimes, including possession of an unregistered firearm and ammunition. The conviction for the firearms offences was imposed 11 months before the commission of this crime. The respondent had been given a number of wholly suspended sentences but remarkably, he had not spent any time in prison until the imposition of this sentence.

9 The Court has always viewed the crime of armed robbery very seriously and, notwithstanding good antecedents and mitigating circumstances, almost invariably imposes a substantial custodial sentence to mark the seriousness of the crime and to act as a general and specific deterrent. In Everett and Phillips v R (1994) 72 A Crim R 422, Cox J (as he then was) said at 427:

"In recent decisions of this Court emphasis has been given to the seriousness of the crime of armed robbery and to the need for sentences to adequately address the requirement for general deterrence. While even armed robberies can vary in the degree of their seriousness, those where firearms are used (whether loaded or not) are viewed particularly seriously: Devine (unreported, Court of Criminal Appeal, Tas, No 70/1993, 27 August 1993) and McFarlane, (unreported, Court of Criminal Appeal, Tas No 113/1993, 22 December 1993)".

"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 who 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."

See also O'Brien v R [2000] TASSC 117; Devine v R (1993) 2 Tas R 458.

10 With respect to mitigating circumstances, the respondent pleaded guilty at the earliest possible opportunity. At his first court appearance before a justice of the peace, the respondent indicated remorse by telling the presiding justice when asked if he had anything to say, that he was sorry for what he had done and he apologised to the KFC staff. The respondent has a disturbed background and met his father for the first time just weeks before sentence was imposed. His counsel told the learned sentencing judge that since that first contact, the respondent's father had visited the respondent in prison and offered him support in the future. At the time of the commission of the crime, the respondent was involved with a woman in what counsel described as "an unstable relationship", involving the abuse of alcohol and the use of marijuana. The learned sentencing judge was told that this relationship had come to an end and that the respondent had resumed a relationship that he formerly had with a woman considerably older than himself. Counsel said that a child had been born of this relationship. She said that this woman did not approve of the use of drugs and was a good influence on the respondent.

11 It appears that the respondent took some steps himself on the road to rehabilitation. In prison he consulted Dr Pasha and took the medication that the doctor prescribed. This had a beneficial effect on the respondent. In addition, the respondent was regularly consulting a psychologist. Accordingly, there was material before the learned sentencing judge to indicate that there were good prospects for rehabilitation, although I observe that the respondent's incarceration soon after the commission of the crime would have been likely to put an end to any relationship that he had with a woman and would have inhibited the resumption of the respondent's former relationship.

12 Notwithstanding the respondent's good prospects for rehabilitation, the seriousness of the crime and the need to impose a sentence with a strong general deterrent effect called for the imposition of a sentence longer than 12 months imprisonment. Aggravating features of the commission of the crime included the use of a sawn-off shotgun and a balaclava to disguise the respondent's face.

13 I was mindful that this is a Crown appeal against sentence and must be approached with the restraints enunciated in cases such as Everett v R [1994] HCA 49; (1994) 181 CLR 295; R v Tait (1979) 46 FLR 386; R v Dowie [1989] TASSC 44; [1989] Tas R 167. Notwithstanding those constraints, I was, and remain, of the view that some undefined error occurred in the exercise of the sentencing discretion and the sentence had to be quashed. With respect to re-sentencing, the need to deter has to be balanced with the prospects of rehabilitation. At the time of re-sentencing, the circumstances of the respondent were such that little weight had to be given to the element of double jeopardy. See Attorney General v McDonald [2002] TASSC 120. Although by the time the appeal was heard the date upon which the respondent was eligible to apply for parole had passed by a week or so, there were no significant matters to take into account arising from the fact that it was the second time that the respondent had been sentenced.

14 At the conclusion of the hearing of this appeal, I joined with the other members of the Court in upholding the appeal, but differed from them in the order of re-sentence. I would have upheld the appeal and in lieu thereof imposed a sentence of imprisonment of 18 months, to commence as and from 15 November 2002 with a non-parole period of 9 months. Assuming a grant of parole, the actual term to be immediately served would have accorded with the sentence determined by the majority. Given the conclusion of the majority, exposition of my reasons for imposing a different sentence is not necessary.

15 The reasons for judgment prepared by Underwood J encapsulate my reasons for joining in the making of the orders made in relation to this appeal on 27 May 2003, and I have nothing to add.