Burns v Tasmania
[2018] TASCCA 18
•13 November 2018
[2018] TASCCA 18
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Burns v Tasmania [2018] TASCCA 18
PARTIES: BURNS, Philip Thomas
v
STATE OF TASMANIA
FILE NO: CCA 3472/2017
DELIVERED ON: 13 November 2018
DELIVERED AT: Hobart
HEARING DATE: 12 April 2018
JUDGMENT OF: Blow CJ, Wood and Geason JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Armed robbery – Sentence of 3 years 6 months' imprisonment with non-parole period of 2 years not manifestly excessive.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: In Person
Respondent: E Avery
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASCCA 18
Number of paragraphs: 44
Serial No 18/2018
File No CCA 3472/2017
PHILIP THOMAS BURNS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
WOOD J (Dissenting)
GEASON J
13 November 2018
Order of the Court
Appeal dismissed.
Serial No 18/2018
File No CCA 3472/2017
PHILIP THOMAS BURNS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
13 November 2018
I agree with Geason J that this appeal should be dismissed, for the reasons stated by him.
There is a little that I would like to add in relation to the appellant's non-parole period of 2 years. A non-parole period may not be less than one half of the period of the head sentence: Sentencing Act 1997, s 17(3). A non-parole period should be "the minimum time that a judge determines justice requires that he [the offender] must serve having regard to all the circumstances of his offence": Power v The Queen (1974) 131 CLR 623 per Barwick CJ, Menzies, Stephen and Mason JJ at 629. Since the appellant's head sentence was 3 years 6 months, the shortest possible non-parole period would have been 1 year and 9 months. The non-parole period fixed by the learned sentencing judge was only 3 months longer than that, and only about 57% of the head sentence. In my view there was nothing unreasonable or unjust about the length of the non-parole period, particularly when one considers the appellant's bad criminal record and the shortage of mitigating factors in this case.
File No CCA 3472/2017
PHILLIP THOMAS BURNS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
13 November 2018
I have had the advantage of reading the draft reasons of Geason J. While I agree with much of what his Honour has said, I respectfully disagree with the conclusion reached. The reasons for my dissent may be briefly stated.
I conclude that the sentence of three and a half years with a non-parole period of two years' imprisonment is manifestly excessive. I have reached this view having particular regard to the nature of the appellant's offending. Armed robbery, like all crimes, covers a spectrum of seriousness in terms of criminal conduct and culpability, and the sentence to be imposed must be proportionate to the particular crime committed. The proportionality principle has a limiting effect so that "a sentence should not exceed that which is appropriate to the gravity of the crime considered in the light of its objective circumstances. In other words, the punishment must fit the crime": Veen v The Queen (No 2) (1988) 164 CLR 465 per Wilson J at 486, Mason CJ, Brennan J Dawson and Toohey JJ at 472; Veen v The Queen (1979) 143 CLR 458; Hoare v The Queen (1989) 167 CLR 348 at 354.
The facts of the matter demonstrate that this is a low level offence of its kind. In summary, the appellant entered a department store with a suitcase on a scooter. His intention was to steal items of property. He had a paint scraper in his jacket, intending to use it as a weapon if he was apprehended. Inside the store, he removed approximately 150 DVDs from shelves and placed them into his suitcase. He caught the attention of store employees and was recorded on CCTV footage. He was not disguised and his conduct was bound to result in his detection. As he made his way to the exit of the store he was approached by a female member of staff who said that she needed to check his bag. He took out the paint scraper from his jacket and held it in a threatening manner in her direction. Upon seeing the weapon she moved away from him and the appellant left the store with the stolen goods.
The crime of armed robbery involves the commission of a robbery when the offender is armed with a firearm or a dangerous or offensive weapon or instrument. Robbery involves the use of violence or threats of violence in order to steal property or to prevent or overcome resistance to the stealing: s 240(1) of the Criminal Code. It is a crime of violence, as well as a crime of dishonesty. The violence or the threats of violence may be before, at, or immediately after the time of stealing.
The crime of armed robbery is to be viewed as not only an offence against the premises, in this instance, the department store the appellant stole from, but also against the staff whose interference was overborne by the offender: DPP v Burns [2012] TASCCA 11 at [54] per Evans J. They are also crimes against the members of the public who by chance were at the scene of the robbery, and crimes against the public at large: [54]. This consideration was referred to by the learned sentencing judge and reflected in his remarks about the prospect that members of the public were likely to have been present at the time of the robbery.
The kind of robbery here involves a threat of violence at the time of stealing in order to overcome resistance to the stealing. Depending on the facts of the particular crime that was committed, a case of threatening violence to resist apprehension may be no less serious than threatening violence in order to steal property. The seriousness of the crime turns on the facts of the individual case and the nature of the particular crime that was committed.
In assessing the seriousness of a particular instance of armed robbery, the level of violence and the menace and danger inherent in the conduct, are significant considerations. In some cases the crime may subject staff to a volatile situation of real intensity and danger. The threat or actual violence may involve coercion to hand over property and engagement with the offender in a highly unpredictable situation. Threats with a weapon may be accompanied by demands such as to open a cash register or a safe. In a case involving violence or threats of violence to overcome resistance to stealing, the threatening conduct may be sustained, involving exposure to danger for the duration of the conduct, or actual violence may be inflicted.
The appellant's confrontation with the staff member lacked the intensity and level of violent engagement of other cases of armed robbery. After the employee was threatened, involving the paint scraper being produced and held in a threatening manner, she immediately withdrew from the situation, and retreated to safety.
The crime did not result in physical or emotional harm to the employee, although there was the potential for the situation to escalate and result in physical harm. The female employee might have tried to stop the appellant from leaving with the stolen property, or a member of the public may have become involved. The staff member could have been emotionally traumatised by the confrontation, perhaps even resulting in psychological harm. The appellant created a situation of danger and the potential for harm must be reflected in the sentence. The situation of danger was likely witnessed by members of the public and likely caused alarm. The fact that he took the paint scraper with him to the department store, intending to use it as a weapon if he were to be apprehended, is an aggravating factor, although not as serious as if he took it intending that he would use it to enable him to carry out the crime he had planned.
I agree with Geason J that general deterrence was an important consideration, and that personal deterrence was also a prominent sentencing objective for the reasons stated by his Honour. The appellant had a history of dishonesty and violence. He had prior convictions for similar conduct, receiving two and a half years' imprisonment in 2012 for two counts of aggravated armed robbery and one count of common assault. His conduct had involved actual violence comprising stabbing an employee at a supermarket with a pair of scissors, and on the other occasion using, as here, a paint scraper in a threatening fashion. The fact he replicated his conduct in 2012 underscores the need for personal deterrence. The appellant relies on the fact that this was his first conviction after having been released from prison in May 2015 as providing hope for reform. This prospect was allowed for by providing eligibility to apply for parole.
Undoubtedly a very heavy sentence was demanded, but the demand is for a very heavy sentence commensurate with the nature of the objective features of the crime.
It is noted that his sentence was reduced by the learned sentencing judge to allow for his early plea of guilty for utilitarian reasons. A modest discount in the order of 10-15% would mean that the sentence that the learned sentencing judge had in mind, if not for his plea of guilty, was in the order of four years' imprisonment. It is my considered view that such a sanction was not warranted.
I would regard a sentence that went beyond a term of imprisonment of two and a half years, and a parole period of more than 16 months, as overly punitive. In my respectful view, the sentence of imprisonment that was imposed of three and a half years and the non-parole period of two years was excessive to the point of error.
File No CCA 3472/2017
PHILIP THOMAS BURNS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
GEASON J
13 November 2018
On 21 August 2017 in the Hobart Magistrates Court, the appellant pleaded guilty to a single count of armed robbery and was committed to the Supreme Court. On 13 November 2017, the appellant was sentenced by Brett J to three years and six months' imprisonment with effect from 26 July 2017. A non-parole period of two years was ordered.
The appellant contends that the sentence was manifestly excessive.
For the reasons which follow, the appeal should be dismissed.
Facts
At about 3pm on Monday, 24 July 2017, the appellant entered the Target store located in Elizabeth Street, Hobart. The store was open for business and the appellant entered with the intention of stealing some items. He had a paint scraper and took with him a large bag on wheels.
For about half an hour the appellant perused the electronic and home entertainment area, before placing approximately 150 DVDs into his bag. He left the store having made no attempt to pay for them, walking towards the Cat and Fiddle Arcade. He was approached by a staff member and a request was made to search his bag.
In response the appellant produced the paint scraper from his jacket and held it in a threatening manner in the direction of the staff member. The staff member retreated and the appellant was allowed to move on.
The incident was captured on store CCTV. The appellant was subsequently identified by police. He was located in Huonville on 26 July 2017.
Police conducted a search of a residence and approximately 85 DVDs were recovered, along with a bag matching the description of that used during the armed robbery.
The appellant took part in an interview with police where he made full admissions to the crime and to exchanging some of the stolen DVDs for cannabis.
Sentencing
In sentencing the appellant, the learned sentencing judge made the following comments:
"Mr Burns, you have pleaded guilty to one count of armed robbery. You have also pleaded guilty to one count of stealing, but as the facts upon which that charge is based are subsumed within the crime of armed robbery, it will be dismissed.
On 24 July 2017, you went to the Target store in central Hobart in order to steal property. You intended to sell the stolen property to provide money to enable you to purchase drugs. I am satisfied that you took a paint scraper with you with the intention of using it as a weapon if it became necessary to do so to escape apprehension. You proceeded to quite openly place approximately 150 DVDs into your bag. As you left the store, a staff member approached you and told you that she needed to check your bag. You produced the paint scraper and held it in a threatening manner. You dispute the prosecution allegation that you gestured with it in a stabbing motion. I will proceed on your version of events, but it makes little difference. The purpose of producing the weapon was clearly to threaten the staff member, so as to make good your escape. The staff member immediately stepped back and allowed you to leave. You were arrested by the police a few days later, after being identified from CCTV footage.
You are 29 years of age. You have a lengthy criminal history, which commences with a dishonesty offence when you were 13 years of age. Since that time, you have committed numerous offences of dishonesty and violence, together with an assortment of other offending. Of considerable significance to the formulation of sentence in this case is that on 21 May 2012, you were sentenced to imprisonment for offending which included two counts of aggravated armed robbery, committed on separate occasions over a period of approximately two weeks in March 2012. On each occasion, the crime consisted of you stealing property from a supermarket and using violence against staff members in order to make your escape. On one occasion, you used a paint scraper in a similar manner to that which occurred on the occasion with which I am dealing. On the other occasion, you used a knife and actually stabbed a staff member with it. On appeal, the sentence which was originally imposed was increased to imprisonment for 2½ years. It seems that you were released from custody in May 2015, after serving this and other sentences imposed at around the same time.
The material presented to me, which includes a pre-sentence psychological report prepared in 2009, suggests a long-standing problem with the use of illicit drugs. This includes both cannabis and amphetamines. The psychological report assessed your level of cognitive functioning in the borderline range. While this suggests a degree of intellectual impairment, it is not suggested that this is so severe that it mitigates or otherwise explains your persistent offending. You have been offered rehabilitative support by a variety of sentencing options in the past but, despite this, it is clear that you continue to offend. On this occasion, you were stealing to obtain money to buy drugs. While this may explain your behaviour, it certainly does not excuse it. It is clear to me that past sentences, including suspended and partly suspended sentences, as well as actual sentences of imprisonment, have done little to deter you from repeated criminal activity. This conclusion is supported by the simple observation that your choice and use of a weapon on this occasion replicated your conduct during the 2012 robberies. I conclude that personal deterrence is a particularly important sentencing consideration in this case.
I regard your crime on this occasion as serious. The crime of armed robbery is always a matter of grave concern because it involves the use of violence. In this case, the crime was premeditated. You went to the store armed with a weapon. I am satisfied that you had contemplated the certain use of that weapon if it became necessary to achieve your escape. You committed the crime against an innocent staff member. The use of such violence had real potential to cause immediate injury, or worse, as well as serious and long-lasting psychological harm. In this case, it is not asserted that the staff member actually suffered such consequences, and she has declined to provide a victim impact statement. Despite this, the potential for such harm is clearly apparent. Further, you committed the crime in a busy store where the presence of members of the public, including children, could be reasonably anticipated.
I will take into account in your favour that you entered a plea of guilty at an early opportunity.
You are convicted of the crime and sentenced to three years and six months' imprisonment. The sentence will be backdated to commence on 26 July 2017. I think that provision should be made for your early release on parole in order to provide the Parole Board with the opportunity to respond to any meaningful commitment by you towards your rehabilitation. However, I am satisfied that the minimum period you should spend in prison is two years. I have come to that conclusion having regard to the nature and circumstances of the offence, and your background which suggests a need for an emphasis on personal deterrence. Accordingly, pursuant to s 17(2) of the Sentencing Act 1997, I order that you not be eligible for parole until you have served two years of the sentence. Finally, I make a compensation order in favour of Target, with determination of terms adjourned sine die."
Antecedents
The appellant has an extensive criminal record with numerous convictions for offences of dishonesty and violence. In 2012 he was convicted on two counts of aggravated armed robbery and common assault and sentenced to two years and six months' imprisonment.
He has previously served periods of imprisonment for similar offending and his parole was revoked in 2014 and 2015.
The appellant's Tasmanian record of prior convictions includes the following:
Type of Crime Number Stealing 50 Trespass 45 Unlawful Possession of Property 12 Unlawfully Carry Dangerous Article 3 Destroy Property 5 Assault Police Officer/Public Officer 4 Common Assault 15 Receiving/Possessing Stolen Property 10 Burglary 1 Aggravated Armed Robbery 2
Personal circumstances and mitigating matters
The appellant was 29 years old at the relevant time and had had a troubled upbringing. He has an intellectual disability and low cognitive functioning. He was employed as a handyman doing gardening and cleaning. He had a drug addiction. At the time of the offence he had recently suffered a relationship breakdown. He made admissions to police and entered an early plea.
Aggravating features
There are a number of aggravating features to this crime. These include:
(a)the crime involved a degree of planning;
(b)a weapon was used, was produced and used in a threatening manner;
(c)the crime was committed at commercial premises at a time when it could be expected there would be other people around;
(d)the crime was committed whilst the appellant was on bail for offences involving dishonesty and violence; and
(f)the appellant continued to offend despite the rehabilitative support provided in previous sentences.
The appellant did not inflict any actual bodily harm on the complainant, though the absence of an aggravating feature does not mitigate the seriousness of the admitted conduct.
Discussion
The principles relevant to the determination of an appeal in which it is claimed the sentence is manifestly excessive are well settled. An appellate court sits to correct material error: Dinsdale v The Queen [2000] HCA 54, 202 CLR 321. Where specific error is not alleged the appellate court must be persuaded of error of the second type referred to in House v The King (1936) 55 CLR 499 at 505, that is, that the sentence imposed is "unreasonable or plainly unjust". Manifest excess is a difficult ground to establish and can succeed only where it is shown that the sentence imposed is wholly outside the range of sentences open to the sentencing judge: Ellis v The Queen [2018] VSCA 221 at [30].
The Sentencing Advisory Council database reveals that there have been approximately 82 sentences imposed for a single count of armed robbery between January 2001 and December 2014. Of those sentences 84.2% were custodial, with a range between 2.3 months and 72 months' imprisonment. The statistical mean is 23.3 months. The mean non-parole period applied for a single count of armed robbery between January 2001 and December 2014 was 14.2 months.
Though in the mid to upper range of sentences for this offence, the sentence is not so disproportionate as to offend any sentencing tariff.
As is so often said, when considering a sentencing range, caution must be taken because there may be a range of legitimate sentencing outcomes. In Wong v The Queen [2001] HCA 64, 207 CLR 584, Gaudron, Gummow and Hayne JJ said at [65], "Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect" [original emphasis]. It is the consistency in the application of principles which is critical; Hili v The Queen [2010] HCA 45, 242 CLR 520; Director of Public Prosecutions v Harriss [2013] TASCCA 5 per Wood J at [15]–[18].
Armed robbery has consistently been viewed by the courts as a very serious crime. Because of its prevalence the appropriate sentence will be one which clearly denounces the crime and serves to deter others: Streets v Tasmania [2016] TASCCA 13; Armstrong v Tasmania [2017] TASCCA 18.
Personal deterrence also figures prominently as a relevant sentencing consideration in this case due to the appellant's prior history. He has a record of dishonesty and anti-social offending, including crimes exhibiting violence and the use of weapons. The crime before the Court represented a continuation of that behaviour. The appellant's record is such that a failure to give prominence to that consideration would have been an error.
While the crime was unsophisticated in its execution and the weapon was crude, it was nevertheless an objectively serious crime. It engendered fear in the shop assistant who approached the appellant to conduct the search. It occurred in a public place where other people were likely to be.
The sentence must reflect the fact that such an encounter creates immediate fear and potentially enduring psychological harm. Frontline workers are vulnerable to this type of offending and are entitled to the protection of the law through the imposition of a penalty which deters the appellant and others from similar offending. The learned sentencing judge quite rightly emphasised that aspect in sentencing.
The facts of this case, and the antecedents of the appellant, make the conclusion that a substantial term of imprisonment was required, unimpeachable. It reflected the broad sentencing aims of punishment, and general deterrence. It afforded protection to the community.
I consider the early plea of guilty attracted an entitlement to a sentencing discount in accordance with what I have said previously in DPP v Broad [2018] TASCCA at [38]. Though not expressed in such a way as to expose the benefit which accrued to the appellant for his early plea, the comments on sentencing indicate that it was given weight by the court.
Rehabilitative considerations were relevant to sentence, but the learned sentencing judge made sufficient allowance for the appellant's rehabilitative prospects in setting the non-parole period.
I cannot say that the sentence imposed in this case was wholly outside the range of sentences open to the learned sentencing judge.
The appeal should be dismissed.
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