Crosswell v Tasmania
[2012] TASCCA 1
•25 January 2012
[2012] TASCCA 1
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Crosswell v Tasmania [2012] TASCCA 1
PARTIES: CROSSWELL, Rodney Gene
v
TASMANIA (STATE OF)
FILE NO/S: 1000/2010
DELIVERED ON: 25 January 2012
DELIVERED AT: Hobart
HEARING DATE: 12 October 2011
JUDGMENT OF: Evans, Blow and Tennent JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Other matters – Armed robbery, assaulting a police officer and other offences – Global sentence of ten years and six months' imprisonment – Whether sentence manifestly excessive.
Aust Dig Criminal Law [3537]
REPRESENTATION:
Counsel:
Appellant: J N Perks and K L Baumeler
Respondent: L A Mason
Solicitors:
Appellant: Butler McIntyre & Butler
Respondent: Director of Public Prosecutions
Judgment Number: [2012] TASCCA 1
Number of paragraphs: 56
Serial No 1/2012
File No 1000/2010
RODNEY GENE CROSSWELL v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
BLOW J
TENNENT J
25 January 2012
Orders of the Court
Appeal allowed.
The sentence of imprisonment imposed on the appellant on 16 November 2010 is quashed and in its place it is ordered that he serve a global sentence of eight years' imprisonment cumulative upon the sentences totalling 21 months' imprisonment that he was then serving, and that he be eligible to apply for parole after serving five years of the sentence of eight years' imprisonment.
Serial No 1/2012
File No 1000/2010
RODNEY GENE CROSSWELL v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
25 January 2012
Rodney Crosswell appeals against the severity of an in globo sentence imposed on him on 16 November 2010 of ten years and six months' imprisonment, subject to him being eligible to apply for parole after serving six years and six months of the sentence. It was ordered that the sentence be cumulative upon sentences he was then serving totalling 21 months' imprisonment which had commenced on 15 May 2010.
His principal ground of appeal is that the sentence is manifestly excessive. Subsidiary grounds of appeal, which his counsel advanced as particulars of the principal ground, are that the learned sentencing judge erred in failing to accord sufficient weight to the appellant's plea of guilty, his genuine remorse, his intention to make monetary reparation to his victims, and the totality principle.
The sentence subject to appeal, was imposed by Wood J, upon the appellant's plea of guilty to the following charges in respect of conduct on or referable to 13 May 2010:
· Count 1 - assaulting a police officer. He assaulted Holly Dillon, a police officer, acting in the due execution of her duty by pointing and discharging a .410 calibre single barrel sawn-off shotgun in her direction.
· Count 2 – stealing. He stole a Commodore sedan.
· Count 3 – armed robbery. When armed with a .22LR calibre single shot sawn-off rifle, he robbed the proprietor of a newsagency of approximately $1,970.
· Count 4 - aggravated assault. In the course of the above armed robbery he unlawfully assaulted a customer of the newsagency by pushing her in the back with the rifle and pointing it at her whilst threatening her.
· Count 5 – unlawfully setting fire to property. Setting fire to the stolen Commodore sedan.
· Count 6 – perverting justice. With intent to pervert the due course of justice in relation to the crimes he had committed, he instigated a friend to provide him with a false alibi, and burnt clothes associated with his commission of the crimes.
On the night of 12 May 2010, police were endeavouring to apprehend the appellant for various crimes. In the early hours of 13 May 2010, police pursued the appellant, who was driving a stolen vehicle, but terminated that pursuit due to his dangerous driving. That vehicle was abandoned. Police next observed the appellant travelling in the front passenger seat of a Honda Coupe. They pursued the Honda. The appellant threw items from the Honda in order to assist the driver to evade police. At about 2.45am, the Honda was travelling north on the Brooker Highway towards its intersection with Risdon Road. Police began deploying road spikes at that intersection. Constable Holly Dillon was placing spikes in the north-bound lane as the Honda approached. That which then followed is the basis of the appellant's conviction on count 1.
Count 1 - assaulting a police officer
In her comments on passing sentence, her Honour said the following with reference to this count:
"Constable Dillon began to move the spikes into the north-bound lane. As she did so, you lent out of the passenger window with a sawn-off single barrelled shot gun in your hands and pointed it in her direction, shouting at her. Constable Dillon was in uniform and you knew she was a police officer. Constable Dillon did not realise that you had a firearm and she kept on laying out the spikes. You then discharged the firearm in her direction. Fortunately she was not shot. You did not intend to shoot her. Your intention was to scare her, and to get her to move further away. To use a firearm as you did for that purpose is a serious matter. There was a very real chance she could have been killed or seriously injured. You discharged the shotgun in her direction from a fast moving vehicle, and when you were within ten metres of her. Your conduct was reckless in the extreme. It is noted that you could have simply travelled on past Constable Dillon."
The Honda evaded the police by swerving from the north-bound lane onto the wrong side of the Brooker Highway and travelling north in its south-bound lane. The Honda was driven to a residence in Lutana, where it was left, together with the shotgun. An occupant of that residence later hid the shotgun elsewhere. When it was found by police a fired cartridge was in the breech. It was a single barrel shotgun that was capable of being fired with one hand.
Count 2 – stealing
Within four hours of leaving the Lutana residence the appellant stole a Commodore sedan from a street in Mornington.
Counts 3 and 4 – armed robbery and aggravated assault
The appellant and another male travelled in the Commodore to the Claremont Newsagency with the intention of robbing it. At the newsagency the co-offender stayed in the parked Commodore. The appellant entered the newsagency armed with a bolt action single shot sawn-off rifle, wearing a balaclava or something similar, and carrying a shopping bag for the anticipated proceeds.
In her comments on passing sentence, her Honour described what then ensued in the following terms:
"Inside the newsagency were the owner, Mr Datta, and a customer, Mrs Shaw. Mr Datta was behind the counter serving Mrs Shaw, who was buying a lottery ticket and a newspaper. You approached the complainants, and yelled words to the effect of, 'Get behind the counter, this is a robbery. Give me the money.' You pushed the firearm into Mrs Shaw's back whilst saying, 'Get around the back. I told you, get around the back.' When she was behind the counter you grabbed her arm and moved her to a position to the end of the counter area. You then pointed the firearm at Mr Datta and demanded he open the till. The till was unlocked and you began taking money from the cash drawers and putting it into the shopping bag. As you were doing so, you demanded to know where the safe was, saying you wanted the 'big money'. Mr Datta told you he did not have a safe. You became angry and grabbed a till from one of the drawers and threw it to the ground. You then pointed the firearm at the face of Mrs Shaw. You were less than one metre from her. She could clearly see the barrel of the firearm. You said to both Mrs Shaw and Mr Datta, 'Don't fucking mess with me, show me where the fucking safe is or I'll fucking shoot yous.' Both Mrs Shaw and Mr Datta feared for their lives. Mr Datta took you to a storeroom at the back of the shop. You forced Mrs Shaw to accompany you and continued your threats by pointing the firearm at both complainants.
As the storeroom was entered, Mr Datta tried to escape by opening a door. You tried to stop Mr Datta and, as you were getting past Mrs Shaw, you punched her to the left side of her body. You grabbed Mr Datta and said, 'Get away from the fucking door.' However, Mr Datta managed to escape through the door, and Mrs Shaw followed. You ran to the waiting stolen vehicle which sped away. Mrs Shaw recorded the registration number and immediately called the police. You stole a total amount of $1,970 in notes and coins.
It is not known whether the firearm you used was loaded or not. Regardless, your victims thought it was and you behaved as if it was."
Two days later the appellant was seen by police driving a motor vehicle, which he crashed and abandoned. Police found the sawn-off rifle that had been used in the armed robbery in that vehicle between the centre console and the driver's seat. There was ammunition in the rifle. It was capable of being fired with one hand.
The sentence of 21 months' imprisonment, to which the sentence subject to appeal was made cumulative, includes a sentence of six months' imprisonment imposed on the appellant for offences arising from his possession of that loaded firearm on 15 May.
Count 5 – unlawfully setting fire to property
Following the armed robbery, the appellant and his co-offender travelled to Rosetta in the stolen Commodore, where it was set on fire and totally destroyed.
Count 6 – perverting justice
The appellant purchased new clothes after the armed robbery, and the clothes worn during the robbery were burnt in the backyard of his co-offender's residence. When police first spoke to the appellant about his involvement in the armed robbery, it was by telephone. He provided them with a false alibi stating that he had been with his mate, Jye Lowry, and was still with him. Jye Lowry confirmed this and later provided police with a statutory declaration to the same effect. When the appellant was later interviewed by police, he reiterated his false alibi.
Relevant considerations
With regard to the victim impact statements that were provided to the Court, her Honour said:
"The victims of your criminal conduct were subjected to a terrifying ordeal. In the case of Constable Dillon she did not realise until after you drove past that you had pointed a firearm in her direction and discharged it. The awareness of what you did, the danger she had been exposed to, and the knowledge that she could have been killed have affected her emotionally and psychologically to a substantial degree, as would be expected. She does not work shift any more. She works in an office rather than out in the field. Since the incident she has suffered nightmares, sleeplessness and anxiety. She experiences flashbacks and moments when panic overwhelms her. She has consulted a general practitioner and a psychologist to assist in managing her symptoms. When wearing her police uniform in public she feels vulnerable, like a target.
The victims of the armed robbery were terrorised by your conduct. Mrs Shaw, whom you assaulted, spoke in her victim impact statement of a genuine fear of death. Mrs Shaw is now fearful for herself and her children. She is hyper vigilant. She has had regular consultations with a psychologist and been prescribed anti-depressant medication.
Mr Datta was very stressed by the robbery. It caused him to consider selling his business.
While it is not known how the victims may fare in the long term, people who have been subjected to these kinds of situations often experience lasting symptoms."
Before explaining the sentence that she imposed on the appellant, her Honour summarised aspects of his extensive record of prior convictions, and observed that it revealed an attitude of contempt of the law and that the crime of assaulting a police officer was not an uncharacteristic aberration. After referring to the appellant's personal circumstances and addressing his long-standing drug addiction, her Honour said:
"I also take into account your plea of guilty which has saved the victims the stress of giving evidence and the State the expense of a trial. I accept that you are genuinely remorseful for the trauma you have caused the victims. You intend to make monetary reparation to the victims. You have insight in relation to the matters you need to address in order to reform. You are motivated to address them. You have expressed a strong desire to change and lead a decent life. I give weight to these matters, but I must also give weight to sentencing goals of general deterrence and denunciation.
The crimes require a heavy sentence. Armed robbery is a serious crime and this is a serious example of it. The crime involving discharging a firearm in the direction of a police officer requires a sentence that makes it clear that such assaults upon police officers carrying out their duty to keep our community safe are unacceptable and cannot be tolerated. The courts recognise that the community is dependant to a significant extent upon the courage of police officers for our safety and personal protection, as well as security of property … When police officers carrying out their duties are subjected to violence, threatened, or placed at personal risk, sentences should be imposed which will operate as a deterrent to others …"
In explaining her sentence, her Honour said:
"You will receive a global sentence of imprisonment, but I will explain the breakdown of it in relation to the various crimes. The sentences have been reduced because of the total and cumulative effect of the sentences and to ensure the overall sentence is not crushing. If I was dealing with these crimes or incidents in isolation, longer sentences would have been imposed.
The sentence I impose will be cumulative upon the sentence you are currently serving. … I have had regard to the total effect of the sentences combined to ensure that the aggregate sentence does not exceed the overall criminality involved in all of these crimes.
In relation to the crime of assaulting a police officer, I consider that a sentence of three and a half years is appropriate. For the crimes of aggravated assault and armed robbery, seven years is required. That is a total of ten and a half years.
For the crimes of stealing a motor vehicle, setting fire to property and perverting justice, I would impose a sentence of eight months, but, in all the circumstances, noting the sentence you are serving for crimes committed in the same period, and noting the principle of totality that I have referred to, I would impose that sentence concurrently with the sentence you are serving.
…
I impose a sentence of ten and a half years' imprisonment, cumulative to the sentence you are serving. You will not be eligible for parole for a period of six and a half years."
When sentenced, the appellant was 27 years of age. He had an appalling record of prior convictions for offences involving dishonesty. It included in excess of 125 convictions for burglary, aggravated burglary and stealing, 24 convictions for motor vehicle stealing, or attempting to commit that offence, together with convictions for other offences involving dishonesty. He had five convictions for escape, three convictions for destroying property, six convictions for threatening, abusing or resisting a police officer, two convictions for assaulting a police officer, one conviction for common assault and one conviction for aggravated assault.
As observed by her Honour, the appellant's record showed that his conviction for the subject crime of assaulting a police officer was not an uncharacteristic aberration. I also observe that it could not be said that the involvement of a firearm in that crime, as well as the subject crime of armed robbery, was uncharacteristic. The second of the appellant's convictions for assaulting a police officer relates to an incident on 30 June 2003, when he produced a firearm and threatened to shoot an officer. His conviction for aggravated assault relates to an incident on 19 January 2007. An aspect of that assault was him threatening to shoot the police officer who was endeavouring to arrest him, with a gun concealed in his pocket. It was not established that he in fact had a gun in his pocket, although the police officer had reasonable grounds for believing that he did.
Extensive as the appellant's prior record is, as noted by her Honour, it could not justify a sentence which was disproportionate to the gravity of the appellant's criminal conduct. However, again as noted by her Honour, as a consequence of the extent of the appellant's record, considerations of retribution, deterrence and the protection of society, were more prominent in his sentencing than they would otherwise have been.
Another significant aspect of the appellant's record of prior convictions is that it shows that past efforts to ameliorate the impact of sentences imposed on him by suspending them, or by granting him parole have failed.
On 8 May 2003, 15 months of a sentence of imprisonment imposed on him was suspended on condition that for 18 months he not commit any offences or crimes. On 30 June 2003, he committed a series of offences, including the crime of assaulting a police officer that has been referred to. On 19 March 2010, which is less than two months before the appellant's commission of the subject crimes, he was made the subject of a drug treatment order. Such an order is an alternative to a custodial sentence. In his case, the custodial component of the sentence was 12 months' imprisonment. An offender is not required to serve all or any of such a custodial sentence unless it is activated because of the offender's failure to comply with a condition of the order. When a drug treatment order is made, the offender must agree in writing to comply with conditions that include a condition that the offender not commit an offence punishable by imprisonment. When the appellant committed the subject crimes he breached that condition.
On 15 March 2005, the appellant was released on parole. He began re-offending within less than one month of that release. On 22 June 2009, the appellant was again released on parole. He began re-offending within a fortnight of that release.
The sentence imposed for assaulting a police officer
Counsel for the appellant acknowledged that this was a serious example of this crime which warranted a sentence of general and personal deterrence. That said, counsel made the point that it must be kept in mind that the form of assault involved was an assault by a threatening gesture. No force was applied to Constable Dillon, and the appellant was not convicted of attempting to apply force to her. It was not until after the incident that she became aware that a weapon had been involved and a shot had been fired. At the time of the incident she was unaware that she had been threatened.
Nonetheless, this was a very serious instance of the crime of assaulting a police officer. The actual discharge of a firearm is an extremely grave threat of violence, and one that is fraught with danger. In this case, the danger was compounded by a number of factors. The firearm was discharged from a moving vehicle in the direction of Constable Dillon and in close proximity to her. The weapon was discharged on a public highway. Another police officer was present and there were other vehicles and persons in the vicinity. There was a real risk that the discharge of the firearm could have caused injury or death. An element of the crime was that Constable Dillon was acting in the due execution of her duty. By interfering with her execution of that duty, the appellant assisted the driver of the Honda to continue to drive in a manner that constituted a very real danger to the public and the occupants of the Honda. The crime was a very public and deliberate challenge to the authority of the police.
In Sentencing in Tasmania, 2nd ed, Federation Press, Sydney, 2002, at par11.314, Professor Warner says that in practice, an offence of assaulting a police officer is prosecuted summarily unless there are aggravating factors such as the use of a lethal weapon. Sentences for the crime of assaulting a police officer in breach of the Code, s114, are very rare, perhaps partly because where a firearm is used, the crimes of assaulting a police officer and aggravated assault now overlap. The table in that text at 11.317 shows that between 1978 and 2000, the highest sentence imposed for a single count of this crime was 18 months' imprisonment, and the highest global sentence was two years' imprisonment. The Court's sentencing database contains 22 single count and global sentences for this crime since 2000. The highest of the sentences is the sentence of two years' imprisonment that has been referred to, which was imposed on the appellant for committing this crime on 30 June 2003.
In the light of Professor Warner's comment about the overlap between the crimes of assaulting a police officer and aggravated assault, I note that the table at 11.311 of her text shows that the highest sentence imposed between 1978 and 2000 for a single count of aggravated assault was two years' imprisonment. The Court's sentencing database contains 99 single count and global sentences for this crime since 2000. The highest sentence imposed for a single count during this period is 18 months' imprisonment.
Her Honour attributed 3½ years of the sentence that she imposed on the appellant to his conviction of the crime of assaulting a police officer. The above analysis shows that this sentence was very high.
The sentence imposed for armed robbery and aggravated assault
Her Honour attributed seven years of the sentence that she imposed on the appellant to his convictions for armed robbery and aggravated assault.
In the course of an armed robbery, it is not unusual that threats are made to persons other than the victim of the robbery, with the consequence that the criminal conduct under consideration involves both an armed robbery and an aggravated assault, or aggravated assaults. Again, it is not uncommon for a global sentence to be imposed for these crimes.
The criminal conduct in question was most serious. It was planned in the sense that for the purposes of it the appellant and his associate stole a motor vehicle which they used to travel to the newsagency, the appellant was armed with a different weapon to that which he had used when he assaulted Constable Dillon, on this occasion it was a sawn-off .22 calibre rifle, and the appellant was wearing a balaclava or similar facial cover when he entered the newsagency. He used and threatened to use the weapon in order to prevail over the non-co-operation of the victims. It was pushed into Mrs Shaw's back, pointed at Mr Datta, and pointed in Mrs Shaw's face when she was less than a metre away. His words and conduct were most threatening and he applied actual force to both victims. As her Honour observed, this was not a fleeting incident of confrontation, the conduct was desperate and menacing. By his threats with the firearm, aggression and verbal abuse, and actual violence, he maintained control over his victims and held them in fear.
The following decisions are relevant to the upper end of the range of sentences for the crime of armed robbery.
Devine v R (1993) 2 Tas R 458. Whilst armed with a sawn-off .22 rifle, and with a stocking over his head, Robert Devine robbed a credit union. He pointed the rifle at two tellers and two customers. He pleaded guilty to armed robbery. He had prior convictions for offences of violence, including robbery with violence and being armed with an offensive weapon. The Court of Criminal Appeal upheld his sentence of eight years' imprisonment.
R v McFarlane (1993) 2 Tas R 201. When wearing a balaclava and armed with an unloaded sawn-off rifle, McFarlane robbed a bank. He pointed the rifle in the general direction of those present. He pleaded guilty to armed robbery. When he committed the crime he was on parole in respect of a sentence he had received when convicted of a charge of robbery with violence and four charges of robbery. The Court of Criminal Appeal, by a majority, increased his sentence from six years to eight years. At 205, Cox J (as he then was), said:
"… in a serious case of armed robbery by a person without claims to mitigation, a sentence of 6 years' imprisonment is by no means the top of an accepted tariff. …
while acknowledging the difficulty of ascertaining the point at which the border-line is passed, I am of the view that a sentence of 6 years' imprisonment did not sufficiently reflect the gravity of the crime, the need to deter its repetition by the respondent and the (slowly) growing number of other offenders, and the interest of the public in unequivocally denouncing such behaviour as wholly unacceptable to the community this Court’s function is to protect."
Devine v R [2003] TASSC 52. When armed with a sawn-off firearm, Robert Devine robbed a newsagency. He pointed the rifle at the newsagent and struck him on the head with its butt. He pleaded not guilty. He was convicted of aggravated armed robbery. He was a repeat offender. The Court of Criminal Appeal upheld his head sentence of nine years' imprisonment. Slicer J, at par[7], said, "The sentence imposed was at the highest range of penalty; ....".
Philpott v R [2004] TASSC 56. Prison escapees forced their way into a closed hotel and robbed those inside. The escapees' faces were covered and they were armed with guns. At the time of his escape Philpott was serving a life sentence for murder. He pleaded guilty to charges that included a charge of aggravated armed robbery and a charge of aggravated burglary. He was sentenced to eight years' imprisonment for these crimes. That sentence was upheld by the Court of Criminal Appeal. At par[7] Slicer J said that this sentence was "at the top end of the range".
Braslin and Cowen v Tasmania [2010] TASCCA 1. These appellants stole a vehicle, used it when carrying out an armed robbery at a hotel and then burnt the vehicle. They pleaded not guilty to charges of stealing, aggravated armed robbery and unlawfully setting fire to property but were convicted of those charges. Braslin had entered the hotel. He was aged 19 and had no directly relevant prior convictions. He was sentenced to four years' imprisonment. Cowen was the driver. He was aged 26 and had prior convictions for crimes of dishonesty and violence. He was sentenced to five years five months' imprisonment. The Court of Criminal Appeal upheld these sentences.
What I take from these decisions is that the sentence of seven years' imprisonment that was imposed on the appellant for the conduct in question was high.
The sentence imposed for stealing, unlawfully setting fire to property and perverting justice
Her Honour said that for the crimes of stealing, unlawfully setting fire to property and perverting justice she would impose a sentence of eight months' imprisonment, "but, in all the circumstances, noting the sentence [the appellant was] serving for crimes committed in the same period, and noting the principle of totality" the sentence would be imposed concurrently.
On its face, a global sentence of eight months' imprisonment for these three crimes is moderate. I am not however satisfied that these crimes should be dealt with together. The crimes of stealing, count 2, and unlawfully setting fire to property, count 5, are closely linked to the primary crime of armed robbery. The Commodore sedan that is the subject of these crimes was stolen in order that the offenders could travel to and from the newsagency where the armed robbery was perpetrated, and thereafter it was incinerated. As was the case when Braslin and Cowen were sentenced, it is appropriate to deal with the theft and torching of the vehicle used to perpetrate the primary crime when sentencing for that crime. I will consider the sentences imposed on the appellant on this basis.
As to the crime of perverting justice alone, between 1978 and 2000 the median sentence imposed for it was three months, Sentencing in Tasmania (supra) par13.205. The Court's sentencing database contains 265 sentences involving this crime since 2000. Only four of the sentences imposed during this period for a single count of the crime are as high as that imposed on the appellant. Two of those sentences were for eight months' imprisonment, one for nine months' imprisonment, and the other for 15 months' imprisonment. This shows that a sentence of eight months' imprisonment for this crime alone would be high.
From the standpoint that I have adopted when considering the separate sentences imposed on the appellant, their breakdown is as follows:
Assaulting a police officer
3½ years
Armed robbery, aggravated assault, stealing, unlawfully setting fire to property
7 years
Perverting justice
8 months
Total
11 years 2 months
Less 8 months for totality and because of the sentence of 21 months' imprisonment he was currently serving
10 years 6 months
It is to be remembered that, before explaining her breakdown of the sentence that she imposed her Honour said that the separate portions of the sentence had been reduced because of their total and cumulative effect and to ensure that the overall sentence was not crushing. She explained that had she dealt with the crimes or incidents in isolation, longer sentences would have been imposed.
My first reaction to the total of the separate sentences imposed on the appellant, that is, 11 years two months, reduced by eight months to a global sentence of ten years six months, is that it is excessive. However, in general terms, when dealing with a global sentence such as this, the most reliable means of assessing its appropriateness is to break it down in a way that enables identified portions of it to be measured against the sentencing range that can be discerned for those portions.
As I have said, the sentence of three and a half years' imprisonment her Honour attributed to the appellant's commission of the crime of assaulting a police officer was very high. The information on past sentences for this crime that is dealt with in par[25], shows that the highest sentence previously imposed for this crime, whether as a single count or as part of a global sentence, is two years' imprisonment. It seems from her Honour's comment that had she dealt with the crimes or incidents in isolation, longer sentences would have been imposed and, that had this crime been so dealt with, the sentence would have been to the order of four years. Whilst the appellant's conduct was a particularly serious instance of this crime, I am not satisfied that it warranted such a sentence.
My conclusion about this portion of the sentence does not of itself mean that I would allow the appeal. The outcome of the appeal depends upon whether the total global sentence imposed on the appellant was manifestly excessive. The magnitude of one portion of a global sentence may be off-set by the modesty of other portions of it.
I attribute seven years of the sentence to the principal crime of armed robbery, as well as the crimes of aggravated assault, stealing and unlawfully setting fire to property. When this portion of the sentence is viewed in the light of the decisions referred to in pars[32] – [36], it is important to keep in mind two factors. Firstly, extensive as the appellant's record of prior convictions is, he has no prior convictions for a crime of armed robbery, in fact he has no prior conviction for any form of robbery. The second factor is his plea of guilty. If he had had prior convictions for armed robbery, and had not pleaded guilty, and had her Honour not reduced this portion of the sentence because of the total and cumulative effect of the sentences and to ensure that the overall sentence was not crushing, it is reasonable to assume that the sentence for this portion of his criminal conduct would have been at least eight years' imprisonment. This shows that this portion of his sentence is at the upper end, if not beyond, the range that is appropriate for the conduct in question.
I attribute eight months of the sentence to the crime of perverting justice. The information on past sentences for this crime, that is dealt with in par[40], shows that a sentence of eight months' for this crime is high. Bearing in mind that the appellant's endeavour to pervert the course of justice failed and he has been convicted of the crimes he was endeavouring to avoid, I am satisfied that such a sentence is beyond the appropriate range.
For these reasons, I conclude that the starting point in terms of her Honour's calculation of the appellant's sentence, a total of 11 years two months, was manifestly excessive. Whilst her Honour quite rightly reduced that total in order to pay regard to totality and the sentence of 21 months that the appellant was then serving, that reduction of eight months does not change my conclusion. I would allow the appeal and quash the global sentence imposed on the appellant.
I turn to the sentence that I consider is warranted. In view of the seriousness of the appellant's criminal conduct, his extensive record of prior convictions and his apparent indifference to past sentences, I would start with sentences at the upper end of the ranges appropriate to the segments of his criminal conduct I have identified. In determining these sentences I pay no regard to his pleas of guilty, totality, and the fact that each crime was committed in the course of an extended period of criminal conduct. My starting point is sentences of two years six months for assaulting a police officer, seven years for armed robbery, aggravated assault, stealing and unlawfully setting fire to property, and three months for perverting justice. These sentences total nine years nine months.
I would reduce this sentence by one year nine months for the factors to which I paid no regard when determining the appropriate sentence for each segment of his criminal conduct, that is, his pleas of guilty, totality, and the fact that each crime was committed in the course of an extended period of criminal conduct. To my mind, the most important of these is that the appellant pleaded guilty. In this regard, I recognise that there was considerable evidence against the appellant in relation to his crimes. It included admissions he made in conversations that were recorded on a listening device installed in the Visitors' Centre at Risdon Prison. Whilst this reduces the mitigatory impact of his pleas of guilty, in a case such as this it does not totally negate it. He pleaded guilty as soon as the charges against him reflected those that are now under consideration. By doing so he facilitated the course of justice to a significant degree and obviated the need for the complainants and others to give evidence upon his trial. It is well recognised that it is in the public's interest to encourage pleas of guilty by giving an offender who pleads guilty a lesser sentence than one who pleads not guilty and is convicted; Cameron v R (2002) 209 CLR 339. I would accordingly impose a global head sentence of eight years' imprisonment.
If the course that I propose is adopted, that sentence would be imposed cumulative upon the sentences totalling 21 months that the appellant was serving when he received the sentence that is the subject of this appeal. They are cumulative sentences of three months, six months and 12 months. The warrant of commitment signed by the magistrate who imposed those sentences states that they are subject to a non-parole period of ten months and two weeks. Whilst the validity of the imposition of that parole eligibility period is highly questionable, the sentencing hearing before her Honour proceeded on the basis that it applied. At the request of both counsel, the hearing before this Court proceeded on the same basis.
With regard to parole eligibility, should a global head sentence of eight years' imprisonment be substituted for the sentence subject to appeal, I am conscious that as explained in pars[20] to [22], the appellant's record shows that past efforts to ameliorate the impact of sentences imposed on him by granting him parole have failed. Nonetheless, as her Honour said, the appellant has made genuine efforts to deal with his drug addiction, and if he receives appropriate support regarding that addiction he has rehabilitation prospects. He has not previously received such a long sentence and he is still a relatively young man. I am not satisfied that it can be said of the appellant that he is so incorrigible and unlikely to reform that he should not be made eligible for parole, or that the period of his parole eligibility should be minimal. It is simply not possible to now determine how he will respond to the long period of incarceration he faces. If the course I have in mind is adopted, he will be in custody for just short of six years before becoming eligible to apply for parole. Assuming, as I do, that he will then apply for parole, the Parole Board will have before it all the information that is then available on the appellant's in-prison behaviour and it will be in a very good position to assess whether he should be allowed parole. I would order that the appellant be eligible to apply for parole after serving five years of the sentence of eight years' imprisonment.
In result, I would allow the appeal, quash the sentence that is the subject of appeal, replace it with a global sentence of eight years' imprisonment cumulative upon the sentences totalling 21 months' imprisonment that the appellant was serving when sentenced on 16 November 2010, and order that the appellant be eligible to apply for parole after serving five years of the sentence of eight years' imprisonment.
File No 1000/2010
RODNEY GENE CROSSWELL v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
25 January 2012
I agree with the orders proposed by Evans J. I have reservations as to whether a hypothetical sentence of the order of four years' imprisonment would have been excessive on count 1 – the crime of aggravated assault committed when the appellant fired a shotgun towards Constable Dillon – but otherwise I agree entirely with his reasons.
There is a little that I wish to add in relation to counts 2 and 5. Those counts relate to the stealing of the Commodore sedan and the crime of unlawfully setting fire to it. Those two crimes were significant because the vehicle was completely destroyed by the fire. However, the learned sentencing judge was not told anything about the value of the vehicle, or even its age. She was told that it was blue and silver, and was told its registration number, but was not given important information relating to the seriousness of the crimes relating to it. For all I know, the vehicle could have been worth $3,000 or $30,000. The learned sentencing judge proceeded on the basis that a global sentence of eight months' imprisonment would have been appropriate for the two crimes relating to the vehicle together with the charge of perverting justice (count 6), subject to the application of the totality principle. In my view, in the absence of information as to the value of the vehicle, such a sentence would have been an appropriate global sentence for those three crimes, subject to the application of the totality principle.
File No 1000/2010
RODNEY GENE CROSSWELL v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
25 January 2012
I have had the benefit of reading the draft reasons of Evans J. I agree with those reasons and the orders he proposes.
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