Director of Public Prosecutions (Acting) v Foster

[2015] TASCCA 2

[2015] TASCCA 2

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

CITATION:              Director of Public Prosecutions (Acting) v Foster [2015] TASCCA 2

PARTIES:  ACTING DIRECTOR OF PUBLIC PROSECUTIONS
  v
  FOSTER, Shane Michael

FILE NO:  685/2014
DELIVERED ON:  5 February 2015
DELIVERED AT:  Launceston
HEARING DATE:  13 November 2014
JUDGMENT OF:  Blow CJ, Porter and Pearce JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Attempted armed robbery – Attempt to rob bank teller at gunpoint, abandoned with no money taken – Sentence of 20½ months' imprisonment with parole ineligibility period of 14 months.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  J Ransom
           Respondent:  G A Richardson
Solicitors:
           Appellant:  Acting Director of Public Prosecutions
           Respondent:  G A Richardson

Judgment Number:  [2015] TASCCA 2
Number of paragraphs:  17

Serial No 2/2015

File No 685/2014

ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v SHANE MICHAEL FOSTER

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
PORTER J
PEARCE J
5 February 2015

Orders of the Court

1. Appeal allowed.

1. Sentence of 20½ months' imprisonment with parole ineligibility period of 14 months quashed.

1. Respondent sentenced to 3 years 3 months' imprisonment with effect from 6 July 2014, of which 3 months 15 days is concurrent with the respondent's other sentences, and the balance is cumulative with his other sentences.

1. Respondent not eligible for parole until he has served 20 months of that sentence.

1. Liberty to apply as to commencement date of the sentence.

Serial No 2/2015

File No 685/2014

ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v SHANE MICHAEL FOSTER

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
5 February 2015

1. I agree with Pearce J, and with the additional comments made by Porter J.

File No 685/2014

ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v SHANE MICHAEL FOSTER

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PORTER J
5 February 2015

1. I agree with the reasons for judgment of Pearce J, and with the orders which his Honour has proposed.  There is one matter about which I wish to add something. 

2. That is the point, strongly put by the respondent's counsel, that as a mitigating factor, the crime was one of attempted armed robbery.  It is true that, ordinarily, attempts to commit offences are treated as less serious than completed offences.  This is because, as pointed out in Bagaric & Edney, Sentencing in Australia, 2013 at 440, ordinarily the harm caused, if any, is considerably less than that caused by actual commission.

3. However, a universal general characterisation is not the proper approach.  The facts of a particular case may warrant a different view.  It has been observed that the circumstances of an attempt can be more serious than the circumstances of a completed offence: Gardini v State of Western Australia [2011] WASCA 208 per McLure P, (Buss JA and Hall J agreeing), at [9]. At least, the circumstances of an attempt "may not be less serious than the circumstances of a completed offence": Dooling v State of Western Australia [2012] WASCA 95 at [8]; Lovett v State of Western Australia [2013] WASCA 78 at [15].

4. The present case provides a good example.  If the offence had been completed, the bank would have been a victim; possibly its customers in general as well, although the major part of the harm may have been borne by an insurer.  But much harm was in fact done in the course of the attempt, as Pearce J has explained.  Not a great deal would have been added in terms of seriousness, were the respondent to have made off with some money. 

File No 685/2014

ACTING DIRECTOR OF PUBLIC PROSECUTIONS
v SHANE MICHAEL FOSTER

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PEARCE J
5 February 2015

1. The respondent, Shane Michael Foster, was found guilty by a jury of one count of attempted armed robbery. He was sentenced by Tennent J to imprisonment for 20½ months. Her Honour reduced the sentence by 3½ months to take into account time the respondent had already spent in custody for the crime. The effective sentence can thus be regarded as imprisonment for 2 years. Her Honour ordered that the respondent be eligible to apply for parole after having served 14 months of the sentence. The Acting Director of Public Prosecutions appeals the sentence on the sole ground that it is manifestly inadequate.

2. At about 9.15am on 13 September 2010, the respondent walked into the Bendigo Bank in Ulverstone. The bank had just opened. He was alone and came in from the footpath through the sliding glass front doors. He was wearing a hooded jumper and sunglasses, and walked the 20 or so steps from the entrance before pausing briefly just short of the customer service counter. No customers were present, although some had been and gone before the respondent arrived. He carried a shopping bag over his shoulder. When the teller came to the counter the respondent stepped forward. They were separated only by the counter. There was no barrier in the space above the counter immediately between them, although there was a glass screen off to each side. The respondent looked down, reached into his bag and produced a sawn-off shotgun. He took the gun out of the bag and, holding it just above the counter, pointed it at the teller. He demanded money. She screamed. He almost immediately turned and ran out of the bank, pushing the gun back into the bag as he did so. The time from when the respondent entered the bank to when he left was about 30 seconds. The interaction at the counter took about 10 seconds. No money was taken and so he was charged with, and found guilty of, attempted armed robbery rather than the completed crime.

3. At the time of the crime the respondent was 36. He was arrested on 14 September 2010, the day after the crime, and remained in custody until he was admitted to bail on 13 December 2010. He then absconded. He was arrested in another State in 2014 and extradited to Tasmania. He was in custody from 21 January 2014 until his sentence. When sentenced by Tennent J he was almost 40. In February 2014, following his extradition to Tasmania, the respondent was also sentenced by magistrates to imprisonment for a total of ten months for summary offences committed in 2009, 2010 and 2011, including contempt, driving offences, breaches of bail, unlawful possession of property and stealing. It was agreed by the appellant and the respondent that the respondent had been held in custody in relation to the crime for which he was to be sentenced by Tennent J for 3½ months, and that the Sentencing Act 1997, s 16(1)(a), required her Honour to take that period into account. Her Honour did so and ordered that the sentence be cumulative to the sentences for the summary offences.

4. Prior to this crime the respondent had some record for offending in Tasmania, but not a bad one, and not for violence. However he had a record in other States. The most relevant is in Queensland. In December 1993 the respondent was sentenced in the Brisbane District Court. The list of offences is a little difficult to understand, but it includes at least four counts of stealing with actual violence in various forms, including when using "personal violence", whilst in company and whilst pretending to be armed with a dangerous weapon. He was sentenced to terms of imprisonment for each crime to be served concurrently, the longest term being for nine years with a recommendation for parole after 30 months. Then, in 2004, he was sentenced again by the Brisbane District Court to imprisonment for 18 months, 15 months of which were suspended, for assaults causing actual bodily harm. In 2003 he was sentenced in Victoria to an intensive correction order for offences of dishonesty and fined for assaulting police.

5. The respondent was born in Queensland but his family lived a transient lifestyle, living in many different places in a number of States. The instability disrupted his education and he is largely illiterate. His father was an alcoholic who physically and sexually abused his children, including the respondent. At age 9 the respondent was placed in State care. Numerous such orders were made in Tasmania, the first when he was 14. Some were in response to juvenile offending. For whatever reason, instead of being placed in foster care he was placed in a detention facility where he was also subjected to physical and sexual abuse. He was 19 when he was imprisoned in Queensland, but following his release he obtained various types of manual work. He returned to Tasmania in 2004. There is a gap in his offending between then and 2009. During that period he held some employment and formed a relationship which resulted in the birth of two children, now aged 8 and 9. The children are not in the respondent's care. The respondent developed addiction to alcohol and drugs as a child, and his addiction to illicit drugs has continued in fluctuating degrees throughout his life. In 2003, in the course of his assessment prior to sentence in Victoria, he was diagnosed as suffering from schizophrenia, exacerbated by poly-substance abuse. After a period of relative stability the respondent, in 2009, again fell into heavy abuse of illicit drugs. Prior to his imprisonment in 2014 he was addicted to heroin and he offended to fund his addiction. His health is poor. He has medication for atrial fibrillation and has Hepatitis C.

6. The impact of the respondent's crime was a relevant sentencing factor. The female teller he approached developed debilitating psychological symptoms, diagnosed as post-traumatic stress disorder. She experiences anxiety, has panic attacks and flashbacks, and becomes distressed when reminded of the event. She has been unable to return to work. Her family is also affected, both emotionally and financially. Another bank employee, the female branch manager, was present at the time of the crime. For a protracted period following the crime she felt hyper-vigilant and insecure at work and continues to feel unsafe.

7. 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 [2010] TASCCA 1, 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. First and foremost, those authorities emphasise the seriousness of the crimes. Armed robbery is one of the more serious crimes, and robbery of a bank using a firearm is one of its worst forms, Harris per Wood J at [20]; R v Everett and Phillips (1994) 72 A Crim R 422 at 427. In Director of Public Prosecutions v CSS I referred to a number of particular sentencing factors which have application to this appeal, including involvement of a firearm, use of a disguise, impact on victims, premeditation and planning, the role of illicit drugs and the so-called principle of totality. There is no need to repeat that analysis here.

8. A wide measure of latitude should be accorded sentencing judges; Postiglione v The Queen (1997) 189 CLR 295 per Kirby J at 336. However, I am persuaded that the sentence imposed in this case is definitely outside the appropriate range of sentences for the crime; Everett v The Queen (1994) 181 CLR 295 per McHugh J at 306. Manifest inadequacy is plainly apparent; Dinsdale v The Queen (2000) 202 CLR 321, per Gleeson CJ and Hayne J at [6]. The respondent entered a bank carrying a firearm. His possession of a firearm and a bag indicates at least some level of premeditation and planning. He wore a hooded top and sunglasses, not a disguise in the traditional sense, but they added to the degree of terror to which the persons present in the bank were exposed. He entered at a time when customers were likely to be present, although none were in fact present. Although there was no evidence that the firearm was loaded, that is not to say it was not loaded, and the victims were not to know whether it was loaded or not. Previous sentences imposed on the respondent had not deterred him. The need for both personal and general deterrence was emphasised because the crime was motivated by the wish to obtain illicit drugs. Anyone involved in the commission of a robbery like this must realise the risk that victims are likely to be terrified and traumatised, as they were in this case. The respondent was not entitled to the mitigation a plea of guilty would have entailed, and any claim to remorse was forfeited when he absconded. The respondent is an adult offender and, despite his contentions to the contrary, the prospect of meaningful rehabilitation was not such as to displace the importance of other sentencing considerations. The respondent's mental illness reduced the importance of general deterrence to some degree, but was not so serious or connected to the crime as to mean that general deterrence did not remain a primary sentencing consideration. Conversely, it emphasised the need for a sentence which protected the public. All of those factors taken together required a sentence of considerable general and personal deterrence, which protected the public and condemned and denounced the respondent's conduct. With respect, the sentence imposed fell well short of what was required.

9. The respondent pointed to a number of considerations in his favour, none of which lead me to a different conclusion. The respondent submitted that, because the crime was an attempt, it is to be treated less seriously than the completed crime. In this case, that submission carries little weight. Whether the respondent succeeded in obtaining money was of little import in considering the seriousness of this crime. In all other respects there was little to distinguish this crime from the completed crime. Pointing the sawn off shotgun at the teller from such short range is a particularly serious aspect of the case. I accept that it is relevant that the crime was of short duration. The interaction with the victim, and thus the immediacy of the threat the respondent posed, was relatively short lived. However I do not regard that factor as justifying the sentence imposed. The impact on the victims, particularly the principal victim, was immediate and strong. The short duration of the crime is not a mitigating factor. The fact that the incident was not more prolonged indicates rather the absence of an aggravating factor. Counsel for the respondent also submitted that the Court should take into account that the attempt was "shambolic". As events turned out, the respondent's attempt was somewhat half-hearted. However there was significant criminality in his conduct. He walked into a bank carrying a gun, which he produced and pointed at a female bank employee, accompanied by a demand for money. At that time, the teller and her fellow employee were not to know whether he was competent and determined or not.

10. The respondent relied upon the principle of totality. The learned sentencing judge properly took into account the effect of the sentence she was to impose in combination with the sentences the respondent was already serving. A sentence should fairly represent the total of the criminality involved in all of the offences to which the total is attributable: R v Gordon (1994) 71 A Crim R 459. It should take account of relativity and avoid the imposition of a crushing sentence: Director of Public Prosecutions v Farmer (2005) 13 Tas R 481 per Slicer J at [5]. In this case the respondent was entitled to little consideration arising from totality. The sentences he was already serving appropriately reflected the criminality involved in the other offending which was, for the most part, quite separate, both in date and in nature, from the attempted armed robbery. The total of the sentences, including the sentence under appeal, was not of such length as to produce a crushing or disproportionate result.

11. In my view the sentence imposed by her Honour manifested error. I would allow the appeal and quash the sentencing orders of the learned sentencing judge.         I would substitute a sentence of imprisonment for 3 years and 3 months.  The 3½ months the respondent spent in custody before being sentenced must be taken into account. The integrity of the sentencing record is best achieved if, rather than reducing the term of the sentence by that period of custody, the commencement date for the sentence is backdated by 3 months and 15 days from the release date for the sentences he served for the summary offences. I understand that release date to be 20 October 2014. The parties should have the opportunity to check the date, and to apply if it is not correct, before a formal order is made. Assuming the date to be correct, the substituted sentence should be imprisonment for 3 years and 3 months commencing 6 July 2014.

12. Her Honour ordered the respondent be eligible for parole after 14 months, just over half the effective sentence she imposed. The combined effect of the other sentences the respondent served, the lapse of time since his earlier serious offending, and his remaining prospects of rehabilitation, persuade me that I should order that he not be eligible for parole until having served 20 months of the sentence I would impose.