Director of Public Prosecutions (Acting) v Crosswell
[2015] TASCCA 22
•4 November 2015
[2015] TASCCA 22
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Director of Public Prosecutions (Acting) v Crosswell [2015] TASCCA 22
PARTIES: ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v
CROSSWELL, Derek Michael
BRADFORD, Jay John
COLES, David Ian Charles
FILE NO: CCA 916/2014
DELIVERED ON: 4 November 2015
DELIVERED AT: Hobart
HEARING DATE: 27 August 2015
JUDGMENT OF: Blow CJ, Wood and Estcourt JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Aggravated armed robbery and other crimes – Sentences of 4½ years', 3 years', and 4 years' imprisonment.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: L Mason
First Respondent: T Kovacic
Second Respondent: R Mainwaring
Third Respondent: K Baumeler
Solicitors:
Appellant: Acting Director of Public Prosecutions
First Respondent Leonard Fernandez
Second Respondent: Legal Aid Commission of Tasmania
Judgment Number: [2015] TASCCA 22
Number of paragraphs: 39
Serial No 22/2015
File No CCA 916/2014
ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v DEREK MICHAEL CROSSWELL, JAY JOHN BRADFORD
and DAVID IAN CHARLES COLES
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
WOOD J
ESTCOURT J
4 November 2015
Orders of the Court:
Appeal allowed.
All respondents' sentences of imprisonment and parole ineligibility orders quashed.
First respondent sentenced to 6 years 3 months' imprisonment, with effect from 14 January 2014, and not eligible for parole until he has served 4 years 2 months of that sentence.
Second respondent sentenced to 4 years' imprisonment, with effect from 15 September 2014, and not eligible for parole until he has served 2 years of that sentence.
Third respondent sentenced to 5 years 3 months' imprisonment, with effect from 25 October 2013, and not eligible for parole until he has served 3 years 3 months of that sentence.
Serial No 22/2015
File No CCA 916/2014
ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v DEREK MICHAEL CROSSWELL, JAY JOHN BRADFORD
and DAVID IAN CHARLES COLES
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
4 November 2015
I agree with the orders proposed by Estcourt J, and with his Honour's reasons.
File No CCA 916/2014
ACTING DIRECTOR OF PUBLIC PROSECUTIONS v DEREK CROSSWELL,
JAY BRADFORD and DAVID COLES
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
4 November 2015
I agree with the reasons for judgment of Estcourt J, and with the orders proposed.
File No CCA 916/2014
ACTING DIRECTOR OF PUBLIC PROSECUTIONS v DEREK CROSSWELL,
JAY BRADFORD and DAVID COLES
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
4 November 2015
The appeal
In this appeal the Acting Director of Public Prosecutions contends that the learned sentencing judge, Tennent J, erred in imposing sentence upon the respondents Jay Bradford, Derek Crosswell and David Coles.
The three men were each found guilty by a jury of one count of aggravated burglary and one count of aggravated armed robbery. They had also each pleaded guilty to other charges. In the case of the accused Bradford the charge being one of robbery, in the case of the accused Crosswell the charge being one of assault, and in respect of the accused Coles the charge being one of perverting justice.
Bradford was convicted of one count of robbery contrary to the Criminal Code, s 240(1), one count of aggravated burglary contrary to the Code, s 245(a)(i) and one count of aggravated armed robbery contrary to the Code, s 240(4). He was sentenced to a period of three years' imprisonment, with parole eligibility after he had served one half of that sentence.
Crosswell was convicted of one count of assault contrary to the Code, s 184, one count of aggravated burglary contrary to the Code, s 245(a)(i) and one count of aggravated armed robbery contrary to the Code, s 240(4). He was sentenced to a period a period of four and a half years' imprisonment with parole eligibility after he had served three years of that sentence.
Coles was convicted of one count of perverting justice contrary to the Code, s 105, one count of aggravated burglary contrary to the Code, s 245(a)(i) and one count of aggravated armed robbery contrary to the Code, s 240(4) . He was sentenced to a period of four years' imprisonment with parole eligibility after he had served two and a half years of that sentence.
The sole ground of appeal relied upon by the appellant is that in the case of each man, the sentence was manifestly inadequate in all of the circumstances of the case.
The facts
The following account of the factual circumstances of the respondents' criminal conduct is taken from the learned sentencing judge's comments on passing sentence, about which there is no controversy:
"At around 3am on 25 May 2013, the three accused, together with another male and a female, arrived at the Manyk nightclub together. They entered the nightclub and stayed for about half an hour. Each was drinking. At one point, the accused Bradford entered an office/storage area towards the rear of the club. He was seen on CCTV cameras to be rummaging around in the area. He then tried to leave that area with some beer he had stolen, and was intercepted by Nicholas Richardson, the licensee of the nightclub. He head-butted and punched Mr Richardson. Mr Richardson was later taken to hospital.
Nicholas Richardson's father, Jason Richardson, who was working as security at the nightclub that night, moved in to help his son. The accused Crosswell stepped in and punched Jason Richardson.
Police were called and the accused Crosswell was spoken to by police in the laneway outside the club in relation to the assault on Jason Richardson. As police were speaking to him, the accused Coles approached Jason Richardson. He made threats to harm him and his family if he did not withdraw his complaint of assault. Mr Richardson as a consequence withdrew his complaint. While this was going on the accused Bradford made off on foot. Police followed him and found him a few blocks away in Macquarie Street. They spoke to him briefly but did not detain him.
The York Hotel at Granton was unlawfully entered at about 4.45am the same morning. At about 4am, the three accused travelled in the same car they had gone to the nightclub in along the Brooker Highway towards Granton to the vicinity of the York Hotel. The evidence did not establish whether the accused Coles and Crosswell exited the car at the hotel or whether the car was driven to where police found it at about 5.15am with the accused Bradford sitting in the driver's seat. When police found the car, it had been reversed up the driveway of a home about 300 metres down the road from the hotel. While the car had registration plates front and rear, that on the front did not belong to it. It was not a stolen plate and had the registration number been checked it would not have shown up as such.
I accept however that, wherever the accused Coles and Crosswell exited the car, they did so armed with a firearm and the accused Bradford knew that and what they intended to do. The accused Bradford remained in the car. Coles and Crosswell entered the hotel at about 4.45am by climbing into an office through an upstairs window which had been left open. Their ability to climb to the window was assisted by the fact major renovations were being undertaken at the hotel and there was scaffolding against the side of the building.
There was a safe bolted to the floor of that office. The safe was locked. There were two people on the premises that night. One was the hotel chef and the other was an employee who had commenced work only the day before. One was hit over the head with the butt of the firearm and both were threatened and tied up. The wallet and mobile phone belonging to one of the men was stolen. Some money was stolen from the other. The safe was removed from the floor of the office and taken down the stairs to the hotel foyer. The safe was manhandled out onto the front porch of the hotel and the accused Crosswell then walked out of the hotel in the direction of the car and Bradford. By the time however he reached the car, police were there talking to Bradford. Their arrival on the scene was purely coincidental. At that time they had no knowledge of the robbery in progress.
The accused Coles left the hotel on foot a few minutes after Crosswell and headed in the same direction as he did. It must be inferred that Coles became aware of the police talking to Crosswell and Bradford and did not keep going to the car. The car returned to the hotel twice in the next hour. On the second occasion, the accused Crosswell exited the front passenger seat, walked up to the door of the hotel and kicked it. He then returned to the car and it was driven off. The same car with the accused Bradford and Crosswell and a female in it arrived at Mockridge Road, Clarendonvale where the accused Bradford then lived at just after 7am.
The accused Crosswell and Coles were seen during the robbery to be wearing what appeared to be calico coin bags over their hands. Two of those were subsequently found in the gutter outside 616 Main Road Granton which was between the hotel and where the car with Bradford in it was waiting. The DNA of the accused Crosswell was found on one of the bags. The accused Crosswell and Bradford were subsequently found together in Sydney by police and extradited to Tasmania. They were taken into custody on 11 June 2013. The accused Coles was not arrested until 1 August 2013."
The sentences
The learned sentencing judge passed sentence on each of the three respondents in turn.
In respect of the respondent Bradford her Honour said:
"You are now 21 years old. You were just turned 20 at the time of these crimes. You have an unenviable record of prior matters given your age. You began offending as a 13 year old. Dishonesty offences featured even then. On 31 January 2008 a suspended detention order was imposed upon you for dishonesty and other matters. One of the conditions related to assistance with drug and alcohol issues and you were required to abstain from use of illegal drugs. A probation order was imposed later that year for further offending. On 14 January 2010 you were placed in detention for dishonesty and driving matters. Your offending continued on release. On 9 May 2013, that is about a fortnight before the events at the nightclub and hotel, you were dealt with for driving while disqualified and ordered to perform community service. You were also placed on probation and were the subject of that order as at 25 May 2013. Your record included offences of violence although not armed robbery or robbery.
Until your remand in custody following the jury verdict, you had spent 7 days in custody in respect of this matter.
Your offending over the years has been driven by abuse of alcohol and drugs. As at May 2013, you were using speed and cannabis. I am told that over the last six months you have not used any drugs at all. You are in a stable relationship and have been so for about 2 years. You hope eventually to become involved in the construction industry. You have a relative in Western Australia who may be able to help you get work on release.
As to the offending, the stealing at the nightclub was opportunistic and the violence which followed spontaneous."
In respect of the respondent Crosswell her Honour said:
"You are now 27 years old. You have a lengthy criminal record. Your first robbery according to your record was committed when you were 16 years old. You committed an aggravated robbery on 10 November 2004. On 8 August 2007, you were convicted of an aggravated armed robbery, an attempted aggravated armed robbery and other offences and ordered to serve 2 years and nine months imprisonment. You were convicted of an attempted aggravated armed robbery on 23 May 2008 and ordered to serve a further 18 months in prison. Convictions for criminal code assaults and wounding have seen you spend more time in custody since. On 10 May 2013, that is a fortnight before the crimes the Court is now dealing with, you were convicted of six counts of breaching bail and one count of motor vehicle stealing. You were sentenced to four months' imprisonment to commence from 2 January 2013 with a probation order to take effect on release. That was subject to conditions designed to assist with alcohol and drug problems. You were sentenced to another term of imprisonment on 17 April 2014 which was backdated to July 2013. That sentence expired in January 2014 and you have been in custody on the present matters since 14 January 2014.
You are single and have no children. Your schooling ended in year 10 which you completed while you were in detention in the Ashley Detention Centre. You have spent a large proportion of your life since in custody. You have in years past clearly had a drug problem. Your counsel indicates you no longer do.
Your assault on Jason Richardson occurred not to help the accused Bradford but because you thought someone had pushed Cody Bradford. You accept you overacted and your plea of guilty came after you had seen the CCTV footage and you realized how things had actually occurred. That plea came before the trial and not after as did the pleas to individual crimes by Bradford and Coles."
In respect of the respondent Coles her Honour said:
"You are 36 years old. You have been in a relationship for three and a half years and have a child aged six to another relationship. Prior to your being remanded in custody you had just organized contact with that child. That has stopped because of your incarceration. You have had a longstanding problem with drugs and still want to get help for this. In March 2012, you were placed on the court mandated drug program by an order of a magistrate. It was cancelled a few months later because of continued offending. The cancellation of that program left you without support and your drug use continued.
Your offending record began when you were 14 years old and continued. When you were 20 years old, a judge of this court dealing with you for an assault described your record as appalling. Your counsel described your prior history as involving generally dishonesty matters and not violence. I note in relation to this that you were dealt with on 13 September 1995 for an assault and an aggravated assault, on 16 December 1998 for a code assault, on 4 September 2001 for two counts of assaulting a police officer and one count of assault, on 1 March 2004 for an assault on a police officer and on 16 March 2012 for a common assault."
Victim impact
The learned sentencing judge had before her a victim impact statement from Mr Nicholas Richardson and Mr Jason Richardson in respect of the events at the Manyk Nightclub.
As a result of the assault by Bradford, Mr Nicholas Richardson suffered a fractured eye socket which was painful and swollen for a number of days and required surgery to have a plate inserted. Mr Richardson has continuing pain, blurred vision and blackness around the eye. He was required to have a month off work and had to shut the nightclub down, as a result of which he lost income. He also had another day job which he had to give up.
Following the events at the nightclub Mr Richardson felt the need to have further security measures put in place with the associated costs. He also had difficulty sleeping and became anxious about the situation at the nightclub and also about his home security.
Prior to the events at the nightclub, and the assault by Crosswell, Mr Jason Richardson suffered from anxiety and depression, but these conditions were well controlled and he had not needed any professional help in relation to them. However, as a consequence of the events, in which his jaw was broken, he said that he could not sleep and became anxious about protecting his home and, as a result, he needed to see a psychiatrist. He said that he feared going back to the club but initially did so to help his son. His anxiety returned as a result of his having to give evidence upon the trial of the respondents.
The learned sentencing judge also had before her a victim impact statement from Mr Vahimets and Mr Cowell in respect of the events at the York Hotel.
Mr Vahimets – who had a shotgun held inches from his face - said that he feared that he was going to die that night. He remained over anxious about security at work and at home and had become very solitary. Mr Cowell thought he was going to be shot. He had only been in work at the hotel less than a day and his move to Tasmania was intended to be a change in the direction of his life. Those plans were shattered. He was unable to return to work for some months. He could not sleep properly and had nightmares. He needed to see a psychologist. His relationship with his partner broke down and he suffered financial loss. Mr Cowell had also been told that he would be shot if he moved.
The nature of the appeal
As I have noted on a number of occasions in the past, Porter J in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]–[34], said of the approach of this Court to sentencing appeals of this type:
"31 For the purposes of this case, I think it is desirable to traverse some well-travelled territory, and to again note the role of this Court on an appeal against sentence. 'The Court of Criminal Appeal has no charter to tinker with sentences. It sits to rectify genuine error'; Aherne v R 20/1982 per Nettlefold J at 3. In accordance with the traditional formula as set out in House v R (1935) 55 CLR 499, it needs to be established that by reason of its severity, the sentence is unreasonable or plainly unjust so as to give rise to the inference that there has been a failure to properly exercise the discretion. As Kourakis J said in A, MC v Police (2008) 102 SASR 151 at [88], 'An appeal ground that a sentence is manifestly excessive is really a convenient alternative expression of the complaint that the sentence is by reason of its severity, unreasonable or plainly unjust.'
32 In Dinsdale v R (2000) 202 CLR 321, Kirby J (with whom Gummow and Gaudron JJ agreed) stated at [58]:
'The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence. Indeed, it is commonly referred to by the Court of Criminal Appeal of Western Australia. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.' [References omitted.]
33 Later, in Wong v R (above) at [58] Gaudron, Gummow and Hayne JJ said:
'Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.'
34 In Dinsdale (above) at [6], Gleeson CJ and Hayne J said that: 'inadequacy or excess is, or is not, plainly apparent'. … ."
More recently in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, another case involving a sole ground of appeal that the sentence was manifestly inadequate, Pearce J, with whom Blow CJ and Porter J agreed, most succinctly, if I may comment, with respect, summarised the relevant principles at [8] as follows:
"As in all such appeals as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellate court is justified. The court sits to correct material error: Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this 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 by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen (2010) 242 CLR 520 at 539."
Aggravated armed robbery
As to the crime of aggravated armed robbery, which is the most serious of the crimes of which each of the respondents was convicted and sentenced in this case, I observed in Chevoux v State of Tasmania [2015] TASCCA 5 at [25]-[27] as follows:
"25 As noted by Pearce J, with whom Blow CJ and Porter J agreed, in Director of Public Prosecutions (Acting) v Foster [2015] TASCCA 2 at [12], sentences for armed robberies and aggravated armed robberies have been the subject of a number of recent appeals to this Court, including Braslin and Cowen v Tasmania (above); DPP v Burns [2012] TASCCA 11; Director of Public Prosecutions v Harris [2013] TASCCA 5, and Director of Public Prosecutions v CSS [2013] TASCCA 10, and those authorities emphasise the seriousness of the crimes, with armed robbery being one of the more serious crimes.
26 In Braslin and Cowen v Tasmania, Porter J observed at [26]:
'26 ... In Sentencing in Tasmania 2nd ed (above) at 332, for the period 1990 – 2000, the tables of single count sentences show the maximum custodial sentence for aggravated armed robbery as five years, whilst that for armed robbery is eight years. The author notes at 333 [12.107], that for young offenders (18 – 21), no single sentence exceeded three years. In relation to aggravated armed robbery, since the time of the tables to the date of these crimes, there have been a few sentences of more than five years. At the highest end of the scale, there are two sentences of 10 years' imprisonment imposed on co-offenders, but which also related to a number of other offences of dishonesty. There is a third such term, but in that case someone was shot. There is one sentence of nine years' imprisonment – (a regular repeat offender) – two of eight years imposed on recidivist co-offenders, and one of 7½ years. For aggravated armed robbery and armed robbery there are 16 sentences of between three and six years, mostly in the lower end of that range, and almost invariably involving commercial premises, relatively large sums of money, and offenders with significant criminal histories. This is somewhat inconclusive but might suggest that a more punitive approach to this type of crime has been taken in this decade, compared to the last. I should note that at the other end of the scale, there have been four community service orders, of between 56 and 80 hours.'
27 In Pickett v Tasmania [2014] TASCCA 1, I observed at [8]:
'It is also of interest to note that the Tasmanian Sentencing Advisory Council in its consultation paper on Sex Offence Sentencing, released in April 2013, states that between 2001 and 2011, 85% of sentences for a single offence of the less serious crime of armed robbery (that is, not aggravated armed robbery), in Tasmania involved an immediate custodial sentence. The median sentence of imprisonment, that is, the sentence which falls in the middle of the range of sentences, for a single offence of armed robbery is stated to have been two years, the minimum was two months three weeks, and the maximum six years.'"
In relation to the somewhat less serious offence of armed robbery I noted in Pickett v Tasmania, at [19]:
"In Crosswell v Tasmania [2012] TASCCA 1, Evans J, with whom Blow J (as he then was) and Tennent J agreed, observed:
'31 The following decisions are relevant to the upper end of the range of sentences for the crime of armed robbery.
32 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.
33 R v McFarlane [1993] TASSC 161; (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."
34 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; ... ".
35 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".
36 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.'"
In Pickett the appellant had an appalling record of offences of dishonesty and a prior conviction for robbery. He had served substantial periods of imprisonment in the past, including, as was noted by the learned sentencing judge in his comments, a total of four years and nine months in custody prior to 5 June 2009 in respect of many offences of dishonesty and a conviction for assault.
As long as 20 years ago, in Everett and Phillips v The Queen (1994) 72 A Crim R 422, Zeeman J said at 441:
"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 whom 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."
In Pickett (above) the Court of Criminal Appeal upheld the head sentence of seven years' imprisonment but reduced the non-parole period from five years to 3½ years. As was catalogued by Blow CJ in that case at [3]:
"The appellant has spent much of his adult life in prison, beginning with several short sentences in 1996, and several more in 1997. He was sentenced to 2½ years' imprisonment in March 2000 for crimes of dishonesty. He was sentenced to a cumulative term of eight months' imprisonment in November 2000 for a robbery – not an armed robbery. There were more short prison sentences in 2002, 2003 and 2004. In 2005 a magistrate sentenced him to 294 days' imprisonment for an assortment of offences, and to a cumulative term of one month's imprisonment for motor vehicle stealing and unlicensed driving. Those two sentences appear to have been concurrent with a sentence of 3½ years' imprisonment, backdated to 6 September 2004, which was subsequently imposed by a judge in relation to some crimes of dishonesty. Then the appellant was sentenced to a cumulative term of 21 months' imprisonment for crimes committed during a prison siege. He was released on parole in June 2009, and was not taken into custody again until 12 January 2011. On 9 January 2012, a magistrate gave him a sentence backdated to 12 January 2011, but he was then released, subject to a drug treatment order, and to a suspended sentence of seven months' imprisonment in relation to that order."
Comments on passing sentence
Bearing in mind the foregoing observations, I set out the learned sentencing judge's general comments on passing sentence in this case. Her Honour said:
"General
While the events at the Manyk nightclub appear to have been unplanned and the stealing by the accused Bradford opportunistic, all three accused engaged in actual or threatened violence. The consequences to the Richardson family have been significant.
As to the events at the York Hotel, they were clearly planned. The location was relatively remote. The accused were armed with a firearm, two employees at the hotel were either hit with the firearm or threatened with it, there were attempts at disguise and there were attempts to remove or minimize the possibility of leaving forensic evidence. While little was achieved in the sense of what was stolen, the impact on the two employees was significant.
As far as all three accused are concerned, any sentence imposed must have a general and personal deterrent effect.
Each accused is being sentenced for different crimes and Bradford played a different role in the events at the York Hotel. Bradford is younger than the other two and has a less enviable record. The robbery he committed at the nightclub was I accept an opportunistic event and not in the same league as that at the hotel. However it had significant consequences for Nicholas Richardson, both physically and financially. As to Coles and Crosswell, their roles at the hotel were similar and there is no reason to differentiate between them as to the events there.
Coles is the eldest of the group and has prior convictions for offences involving violence and dishonesty. His offending I am told was largely due to a difficulty with drugs which no longer exists. I note that he participated in the court mandated drug program in 2012 but that his participation ended as a consequence of further offending. As to Crosswell, he has prior convictions for robbery, aggravated armed robbery and attempted armed robbery. He has served lengthy terms in prison for this offending. He had been sentenced for other offending just a fortnight before the present crimes.
While none of the offenders is to be sentenced for their prior record, those records are relevant when considering the degree to which personal deterrence is required."
The appellant's submissions
Ms Mason, counsel for the appellant, submits that this was a bad example of the crime of aggravated armed robbery involving "a prolonged and terrifying ordeal" for the two victims. In her written submissions she contends that the premises were entered with the intention to commit a serious crime, that the premeditation, use of a firearm, use of violence beyond that which was required to achieve the respondents' purpose, and impact on the victims, means that, absent any extenuating circumstances, the crime fell within the upper range of seriousness for crimes of this nature. I agree.
Ms Mason dealt individually with the circumstances of the three respondents in her written submissions as follows:
"Crosswell
20 The respondent Crosswell was 26 years old at the time the crimes were committed. There was little to be said in mitigation.
21 The respondent had a long record of relevant prior convictions. He was subject to a probation order. A summary of his record is contained in the following table:
Type of crime
Number
Aggravated armed robbery
1
Attempted aggravated armed robbery
[2]
Aggravated robbery
2
Aggravated burglary
1
Aggravated assault
2
Assault (Police Offences Act)
5
Assault (Criminal Code)
3
Stealing
25
Escape
1
Burglary/attempted burglary
22
Unlawfully set fire to property
3
Wounding
2
22 In addition the respondent was sentenced for the assault against Jason Richardson. The assault on Jason Richardson was unprovoked and an overreaction to a mistaken set of circumstances.
23 Although he pleaded guilty to the crime, it was a late plea, there was a strong case against him, the event was witnessed and the assault was captured on CCTV footage. The utilitarian benefit of the plea was therefore minimal.
24 Mr Jason Richardson was physically and psychologically injured.
Coles
25 The respondent was 36 years of age. He had encountered difficulty with drug addiction which served to explain his offending history. He had a supportive partner and young child.
26 The respondent Coles has a long record of relevant prior convictions and they are summarised in the following table:
Type of Crime
Number
Aggravated burglary
5
Resist police
1
Assault police
3
Aggravated burglary
6
Aggravated assault
[1]
Assault (Police Offences Act)
2
Assault (Criminal Code)
2
Stealing
44
Escape
1
Trespass
4
27 In addition the respondent was sentenced for the crime of perverting justice. The respondent had intervened at a time when Mr Jason Richardson was making a complaint to police about the conduct of the respondent Crosswell. The impact of the threat was significant. It resulted in Mr Richardson declining to follow through with his complaint of assault, thereby impacting on the ability of attending police to arrest and charge the respondent Crosswell at that time. As a result, the respondent Crosswell and Coles were able to leave the area and the subsequent crimes at the York Hotel were committed shortly thereafter.
28 The threat made by the respondent Coles had a continuing impact on Mr Richardson. He held fears about returning to the night club and concerns about protecting his family.
29 Given the lengthy records of the respondent Coles and Crosswell, their age, the level of involvement in the aggravated armed robbery, and the absence of mitigating factors, they were not entitled to leniency. Retribution, deterrence, and the protection of society deserved significant weight when determining the appropriate sentences.
Bradford
30 The respondent was 20 years old at the time the crimes were committed. He had some employment prospects. His role was lesser than that of the other two respondents however he was aware that they entered the Hotel armed with a firearm and knew what they intended to do. He went back to the hotel to retrieve the safe and/or to find the respondent Coles.
31 The respondent Bradford had a number of relevant prior convictions for dishonestly and violence. A summary of his prior convictions is contained in the following table:
Type of Crime
Number
Burglary
3
Stealing
7
Aggravated assault
1
Assault
1
Escape
1
Possess dangerous article in public
2
Motor vehicle stealing
20
Threaten/resist police
2
32 In addition he was sentenced for the crime of robbery. Although he pleaded guilty , it did not provide him with any significant mitigation. It was a late plea, the event was witnessed and the crime was captured on CCTV footage DPP v Burns [2012] TASSCA 11 at [52].
33 The crime was an opportunistic one; however it resulted in significant consequences for Nicholas Richardson. His injuries were serious and required surgery. He had lasting physical symptoms including blurred vision and continuing pain. He was required to take time off work and suffered loss of income as a result. He suffered psychological symptoms including anxiety and difficulty sleeping." [Appeal book references omitted.]
The respondents' submissions
I have considered the submissions made on behalf of each of the respondents.
On behalf of the respondent Bradford, his counsel Ms Mainwaring, in her written submissions contended as follows:
"9 The sentence imposed was a significant one and took into account principles of denunciation, deterrence and punishment.
10 The Respondent's age was a relevant factor and rehabilitation was a prominent consideration. The Respondent has not 'passed beyond the position where it became inappropriate to afford priority to rehabilitation when sentencing him.'
11 The sentence of three years' imprisonment with the minimum non-parole period was not an insignificant sentence. It took into account the requisite sentencing factors and gave appropriate allowance for age, personal circumstances and rehabilitation. It is not a sentence that can be shown to be manifestly inadequate, in all of the circumstances of the case."
On behalf of the respondent Crosswell, his counsel, Mr Kovacic, in his written submissions, contended as follows:
"16 The Respondent entered a plea of guilty to the assault.
17 The assault was not to assist Mr Bradford in his Robbery, but as a perceived assault on a female friend. It was an overreaction to those perceived circumstances.
18 It was not premeditated, nor was it a prolonged attack.
19 As to the Aggravated Burglary and Aggravated Armed Robbery, despite there being a plan hatched at some stage it was amateurish.
20 In previous years the Respondent had a drug problem, which appears to have contributed to his offending in the past. He has overcome these issues …
24 This is not the worst example of the crime of Aggravated Armed Robbery. There was total lack of sophistication, the firearm was not discharged, and nobody was seriously hurt.
25 The sentence of 4 and a half years could not be considered so far below any range as to warrant interference by the Court. Interference may only be justified on the basis of fairness in that it creates a strong sense of grievance.
26 The tariff is but one factor to take into account in the exercise of sentencing discretion. In having regard to sentences imposed for a crime, not every sentence has to fall within that range." (Appeal Book references omitted.)
On behalf of the respondent Coles, his counsel, Ms Baumeler, in her written submissions, contended as follows:
"17 … it is not accepted that there weren't factors specifically relevant to Coles which could not be used to impose a different sentence upon him as opposed to his co-offender Mr Crosswell.
18 Mr Coles' prior convictions, though significant, were more properly characterised as offences that in the main carried an element of dishonesty.
19 The sentence imposed of 4 years imprisonment with a 2½ year non-parole period was a significant sentence.
20 The imposition of a greater than half non-parole period was indicative of the seriousness of the matter and a denunciation of the conduct.
21 The sentencing court took into account all relevant matters, and the sentence imposed was not manifestly inadequate." (Appeal Book references omitted.)
Discussion
In my opinion the submissions made on behalf of each of the respondents, when scrutinised, do nothing to answer the appellant's contention that the sentence in each case was manifestly inadequate. The mitigating circumstances in each case, when given their full measure, do not alter the position. I accept the submissions made on behalf of the appellant as set out above in these reasons. They are, in my view, wholly valid and the appeals should succeed.
In so saying, however, I do accept that the learned sentencing judge, in the differentiation in the respective sentences imposed in the case of each respondent, was within a range that adequately reflected considerations of parity in each case, bearing in mind the additional crime committed in each case over and above that of armed robbery. Her Honour, in my view, also correctly reflected the engagement of the totality principle in the case of the respondent Crosswell who had been in prison for some 16 months as at the date of sentencing; and her Honour had not lost sight of the age and antecedents of the respondent Bradford and the fact that he did not enter the hotel. It needs to be remembered in Bradford's case that those matters notwithstanding, he was also to be sentenced for the crime of robbery in a case that had very serious consequences for the victim.
In my view however, error in sentencing each of the respondents is apparent. It is clear to my mind, from the review of the appellate cases I have set out above in these reasons, that after taking into account all that can be, and indeed, has been said on behalf of each respondent, the length of each of their sentences is out of step with the approach of this Court in sentencing for the crime of aggravated armed robbery. Each is sufficiently out of step with that approach to warrant intervention, while fully mindful of the role of this Court on appeals of this kind.
In my view the respondent Crosswell should be sentenced to a term of six years and three months' imprisonment; the respondent Coles should be sentenced to a term of five years and three months' imprisonment; and the respondent Bradford to a term of four years' imprisonment.
I apprehend no reason why each of the respondents should not be eligible for parole after serving the same respective proportions of the new head sentences as were set by the learned sentencing judge in respect of the original sentences. It follows that the respondent Crosswell is not to be eligible for parole until he has served four years and two months of his sentence; the respondent Bradford is not to be eligible for parole until he has served two years of his sentence; and the respondent Coles is not to be eligible for parole until he has served three years and three months of his sentence.
Disposition
I would allow the appeal and set aside the sentencing orders of the learned sentencing judge. The orders I would make are:
1The respondent Crosswell be sentenced to a term of six years and three months' imprisonment, with effect from 14 January 2014, and should not be eligible for parole until he has served four years and two months of that sentence.
2The respondent Bradford be sentenced to a term of four years' imprisonment, with effect from 15 September 2014, and should not be eligible for parole until he has served two years of that sentence.
3The respondent Coles be sentenced to a term of five years and three months' imprisonment, with effect from 25 October 2013, and should not be eligible for parole until he has served three years and three months of that sentence.
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