Crosswell v Tasmania

[2013] TASCCA 2

[2013] TASCCA 2

COURT:      SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:            Crosswell v Tasmania [2013] TASCCA 2

PARTIES:  CROSSWELL, Aaron James
  v
  STATE OF TASMANIA

FILE NO:  CCA 594/2012
DELIVERED ON:  1 March 2013
DELIVERED AT:  Hobart
HEARING DATE:  26 February 2013
JUDGMENT OF:  Blow, Porter and Wood JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Unlawfully injuring property and attempted stealing – Blowing up of automatic teller machine – Whether sentence of 15 months' imprisonment with parole eligibility after 12 months manifestly excessive – Delay in prosecution – Shorter parole ineligibility for co-offender.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  K Baumeler
           Respondent:  J Hartnett and A Shand
Solicitors:
           Appellant:  Butler McIntyre & Butler
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2013] TASCCA 2
Number of paragraphs:  13

Serial No 2/2013
File No CCA 594/2012

AARON JAMES CROSSWELL v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW J
PORTER J
WOOD J
1 March 2013

Order of the Court (26 February 2013)

Appeal dismissed.

Serial No 2/2013
File No CCA594/2012

AARON JAMES CROSSWELL v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW J
PORTER J
WOOD J
1 March 2013

1. This appeal was dismissed by this Court on 26 February 2013.  These are our reasons for dismissing it.

1. This was a sentencing appeal.  In the early hours of 9 April 2009 the appellant, Aaron Crosswell, travelled with some companions from Hobart to Oatlands, and then to Orford, where they blew up an automatic teller machine, hoping to steal from it.  They did not succeed in getting any money out of the machine.  The appellant and one of his companions, Kurt James, were tried together in relation to the incident.  In June 2012 a jury found them both guilty of unlawfully injuring property and attempted stealing.  Tennent J sentenced the appellant to 15 months' imprisonment with effect from 24 June 2012, and ordered that he not be eligible for parole until he had served 12 months of that sentence.  In this appeal he contends that both the head sentence and the non-parole period were manifestly excessive.

1. The appellant's crimes were very serious.  He and his companions initially planned to blow up an ATM at Oatlands, but they changed their plans and drove from there to Orford.  They went equipped with gas bottles and a device for pumping gas into an ATM.  The appellant and two other men travelled in his car.  (The third man was charged and sentenced separately.)  Two females travelled in a second car.  The explosion destroyed the ATM.  Repairs cost $29,731.70.  The explosion started a fire.  The ATM was housed in the wall of a local supermarket.  Fortunately a local police officer attended the scene quickly and extinguished the fire.  Otherwise the consequences could have been far worse.  The local community was left without the services of the ATM for some time.

1. The appellant was 24 years old when he committed these crimes.  He was on bail at the time.  He had a long record of prior convictions.  He has been committing crimes of dishonesty since he was 12 years old.  He has been to prison a number of times, beginning with a sentence imposed in 2004 for an armed robbery.

1. Between the commission of these crimes in April 2009 and the jury finding him guilty of them in June 2012, he spent significant periods in custody.  The details are as follows:

·    On 9 April 2009 he committed these crimes.

·    On 20 April 2009 he and some companions went to the Kingston shopping centre where they blew up another ATM using explosives, hoping to steal from it.  They were disturbed, and left empty handed. 

·    On 7 May 2009 he was taken into custody.

·    On 2 July 2009 a magistrate sentenced him to nine months' imprisonment, with effect from 7 May 2009, in relation to a large number of offences of dishonesty.

·    On 20 August 2009, on two charges of unlicensed driving, a magistrate sentenced him to two cumulative terms of 28 days' imprisonment each.

·    On 9 October 2009, in relation to the Kingston ATM incident, he was sentenced to a cumulative term of 18 months' imprisonment, with a non-parole period of 12 months.

·    On 24 January 2011 he was released on parole.

·    On 23 February 2011 he re-offended.  His offences on that occasion included dangerous driving and driving whilst disqualified.

·    On 25 March 2011 his parole was revoked.

·    On 5 April 2011 a magistrate sentenced him to a cumulative term of six months' imprisonment in relation to the dangerous driving, driving whilst disqualified, and other offences.

·    On 2 September 2011 he was released from custody.

·    On 24 June 2012, during his trial in relation to the Orford incident, he was remanded in custody on unrelated charges.  (Clearly the sentence in relation to the Orford charges was backdated to that date in accordance with Geale v Tasmania (2009) 18 Tas R 338.)

1. There was little for the learned sentencing judge to take into account in mitigation.  This was not a case that involved a lack of prior convictions, a plea of guilty, or any remorse.  The matters relied on by counsel for the appellant were as follows:

·    He and his partner had separated.  He had looked after their son while she was in prison.  Family Court proceedings were pending in relation to their son.  Imprisonment would interfere with the Family Court proceedings and his relationship with the child.

·    There had been a significant delay in relation to the prosecution for the crimes committed at Orford.  As a result, he would be serving two separate sentences in relation to the two ATM incidents of April 2009.

·    The appellant had stayed out of trouble between his release on 2 September 2011 and his arrest on 24 June 2012.

1. On the question of delay, counsel for the appellant submitted to the learned sentencing judge that there had been a significant delay in the prosecution of the charges.  It appears that a decision to charge the appellant was not made until after a particular witness provided a statutory declaration to the police on 7 February 2011.  Counsel for the appellant submitted to the learned sentencing judge that there did not appear to be any reason why the appellant could not have been charged in relation to the Orford crimes before then.  The Crown prosecutor made a submission to her Honour to the effect that, until the statutory declaration of February 2011 was received, the evidence was not so strong that a Crown Law officer would have signed an indictment.  However she conceded that there was an unexplained delay between the provision of the statutory declaration on 7 February 2011 and the filing of a complaint in the Magistrates Court on 13 October 2011. Her Honour referred to the conflicting submissions as to delay in her sentencing comments, and evidently found it unnecessary to express an opinion as to the state of the evidence, or reasonableness of not charging the appellant, prior to February 2011.

1. On the hearing of this appeal, counsel for the appellant made some submissions as to the state of the evidence available to the prosecuting authorities before the receipt of the statutory declaration.  She referred to material that was not in the appeal books, and which was not canvassed in sentencing submissions at first instance.  We came to the conclusion that it was not necessary for us to reach any conclusion as to the reasonableness or otherwise of the appellant not being charged until after February 2011.  In our view it does not matter whether the length of the unexplained delay in charging the appellant was about eight months or about two years, or even somewhat longer.  This was not a case of an offender who reformed long ago and was brought before the Court for sentencing for a stale crime.  It was not a case where there was an inordinate delay between the charging of the offender and the imposition of a sentence.  Insofar as it was appropriate to regard the appellant's crimes relating to two automatic teller machines in April 2009 as a single course of conduct, it was appropriate for the learned sentencing judge to take into account the fact that he had been separately sentenced to a term of imprisonment for the Kingston ATM incident, had served that sentence, had been released, and had had between nine and ten months of freedom thereafter.  Those were the consequences of the delay in charging him in relation to the Orford incident.  Her Honour was plainly aware of those facts, and there is no reason to think that she failed to give them appropriate weight.

1. Without the delay in the charging of the appellant in relation to the Orford incident, he might not have been exposed to the unpleasant experience of having to go back into prison to serve a significant sentence after months of freedom.  When sentencing the appellant, the learned judge made the following comments as to that point:

"The State concedes there was an unexplained delay for several months in 2011.  However, there was nothing suggested by your counsel to flow from that delay, save that you will now serve a term of imprisonment again, having been released from custody.  Were you still on bail as you were when your trial commenced, that factor might carry some weight; however, you have been returned to custody as a result of further alleged unrelated offending which, if proved, will probably see you returned to custody in any event."

1. The fact that the appellant had been taken back into custody on 24 June 2012 was relevant because it lessened the impact of the imposition of a custodial sentence.  The learned sentencing judge was entitled to acknowledge that.  She did not lose sight of the presumption of innocence.  One can tell that from her use of the word "alleged".  The fact that the appellant had to begin serving a 15-month sentence more than three years after the crimes it related to, and after more than nine months of freedom, was largely a consequence of delays in incriminating evidence becoming available to the police, and of the appellant's decision, which can in no way be counted against him, to defend the charges.  In all the circumstances, it was reasonably open to her Honour to treat the unpleasantness of commencing a 15-month sentence after a period of freedom as something that carried no significant weight.

1. Her Honour explained her reasons for imposing a long non-parole period, equal to 80% of the head sentence, as follows:

"Your record discloses that you were given parole in January 2011 and breached it less than one month later by further offending, although not by offences of dishonesty.  Your record does not disclose any other breach of parole.  Given your age and personal circumstances, I will make a limited order of parole, such as to assist with possible rehabilitation.  Given your offending history, however, it will not be the shortest period that might be applied.  You will be eligible for parole when you have served 12 months of your sentence."

1. Her Honour sentenced the appellant's co-accused, Kurt James, at the same time.  She imposed the same head sentence on him – 15 months' imprisonment – but ordered that he be eligible for parole after serving half that sentence.  The appellant contends that his non-parole period should have been more like that of his co-offender.  However a significantly shorter non-parole period was appropriate for the co-offender because he had been in custody since 2010, and did not have a history of breaking parole.  But for the sentence that her Honour imposed, he would have been liable to imprisonment until 17 May 2015, though eligible for parole from 2 January 2014.  Her Honour sentenced that man to a cumulative term of imprisonment which, according to the information given to her, could not commence until he had already spent over 39 months in custody.  By contrast, the total period that the appellant spent in custody between April 2009 and his release in September 2011 was a little under 26 months.  It was appropriate in the co-offender's case to impose the shortest possible non-parole period, in order to give the Parole Board flexibility and to encourage rehabilitation.  Because of the differences in the circumstances of the two offenders, there is no reason why the disparity in the lengths of their non-parole periods could reasonably be regarded as justifying a sense of grievance on the appellant's part.

1. Having regard to the appellant's record of prior convictions, which included serious offences committed whilst on parole, it would have been open to the learned sentencing judge to make no provision for parole at all.  Having regard to the seriousness of the appellant's crimes and the shortage of mitigating factors, we concluded that neither the head sentence of 15 months' imprisonment nor the non-parole period of 12 months was manifestly excessive.  We therefore dismissed the appeal.