Director of Public Prosecutions v Harris

[2013] TASCCA 5

[2013] TASCCA 5

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

CITATION:              Director of Public Prosecutions v Harris [2013] TASCCA 5

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v
  HARRIS, Damien William

FILE NO/S:   1124/2012
DELIVERED ON:  7 June 2013
DELIVERED AT:   Hobart
HEARING DATE:   13 May 2013
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 – Crown appeal alleging manifest inadequacy – Pleaded guilty to one count of armed robbery, one charge of possessing a loaded firearm in a public place and one charge of possessing a shortened firearm – Whether sentence of 3½ years' imprisonment with parole eligibility after 27 months manifestly inadequate. 

Criminal Code (Tas), s402(4).
Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:   J Shapiro
             Respondent:   K L Baumeler
Solicitors:
             Appellant:   Director of Public Prosecutions
             Respondent:   Butler McIntyre & Butler

Judgment Number:  [2013] TASCCA 5
Number of paragraphs:  55

Serial No 5/2013

File No 1124/2012

DIRECTOR OF PUBLIC PROSECUTIONS
v DAMIEN WILLIAM HARRIS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
WOOD J

ESTCOURT J (Dissenting)
7 June 2013

Orders of the Court

1         Appeal allowed.

2         Sentence of 3½ years' imprisonment with eligibility for parole after 27 months quashed.

3         Respondent sentenced to 4½ years' imprisonment with effect from 7 October 2012.

4         Respondent not eligible for parole until he has served 27 months of that sentence.

Serial No 5/2013
File No 1124/2012

DIRECTOR OF PUBLIC PROSECUTIONS
v DAMIEN WILLIAM HARRIS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
7 June 2013

1  This is a sentencing appeal instituted by the Director of Public Prosecutions.  The respondent, Damien Harris, robbed a video rental store on the night of 7 October 2012, armed with a loaded double-barrelled sawn-off shotgun.  He pleaded guilty to a charge of armed robbery, and was sentenced by Porter J to 3½ years' imprisonment, with an order that he not be eligible for parole until he had served 27 months of that sentence.  The appellant contends that that sentence was manifestly inadequate.

2  Full details of the relevant facts relating to both the crime and the respondent are set out in the judgment of Estcourt J, which I have had the advantage of reading in draft form. 

3  This was a serious crime for a number of reasons, but particularly because the respondent was armed with a loaded double-barrelled shotgun.  There was a risk of accidental discharge.  There was a risk that something might happen that would cause the respondent to fire, even though there was no suggestion that he went to the store thinking that he might discharge the weapon.  The crime was premeditated, to the extent that the respondent had spent part of the day in question planning it, and had gone to the trouble of obtaining the shotgun, some ammunition, and a balaclava, which he wore.  The wearing of a balaclava should be regarded as an aggravating factor because it tends to arouse added fears in a victim: O'Brien v R [2000] TASSC 117 per Cox CJ at [6]. The loaded firearm was pointed at one of the employees in the video store. Of the three employees present, one suffered significant psychological problems, apparently partly because she had been the victim of another very serious crime not long beforehand. The robbery occurred in a public place at night, at a time when members of the public were likely to be present. The amount stolen was $1,118.

4  It is easy to imagine worse armed robberies.  The respondent was on his own.  The gun was not fired.  At the time of the robbery the respondent was not under the influence of drugs or alcohol, as armed robbers often are, and there was therefore less risk of the gun being accidentally discharged.  It was not held close to anybody.  There was no physical violence at all.  No verbal threats were made.  No members of the public were aware of the robbery until after the respondent left the store.  Not much money was taken. 

5  The respondent was 36 years old.  He had been to prison several times, beginning shortly after his 18th birthday, but mainly for relatively minor offences.  He was convicted of aggravated robbery in Western Australia in 2002, sentenced to 5 years' imprisonment, transferred to Tasmania, and paroled here in August 2005.  In 2006 he committed a second robbery by stealing meat from a supermarket and punching the manager when he asked him to give it back.  He was sentenced to 12 months' imprisonment.  This robbery in 2012 was his third robbery, but his first armed robbery.  He had been out of prison for only about six months when he committed it. 

6  Counsel for the respondent made submissions to this Court about the information, or lack of it, provided to the learned sentencing judge about the robbery conviction in Western Australia.  As is usual, the Crown prosecutor provided his Honour with a record of the respondent's prior convictions, but that record contained only Tasmanian convictions, and made no reference to the one in Western Australia.  Incongruously, the record showed that on 2 August 2005 the respondent was paroled for 3 years, 2 months and 2 days, without any information as to why he had been in custody at that time.  The prosecutor who appeared at that stage should have noted that omission and provided the missing information.  The learned sentencing judge was provided with sentencing comments in relation to the second robbery, and learned of the Western Australian conviction only because it was mentioned in those comments.  It was submitted to this Court that the Western Australian conviction should carry less weight because of those circumstances.  I disagree.  The learned sentencing judge was made aware that the respondent was sentenced to 5 years for robbery in Western Australia in 2002.  He was obliged to give full weight to that information, even though he had no details of the robbery, and even though the information was not contained in the record of prior convictions.

7  The mitigating factors, and my comments relating to them, are as follows:

·     The robbery was over very quickly.

·     All of the money was recovered by the police shortly after the robbery.

·     The respondent, on being interviewed by the police shortly after the robbery, made full admissions.

·     There had been remorse on the respondent's part, at least from the time he was interviewed by the police.

·     The respondent pleaded guilty in the Magistrates Court at an early stage.  He had the proceedings brought forward so that he could plead guilty and have the case disposed of before Christmas.  However the case against the respondent was overwhelming, and he no doubt knew that.  His plea of guilty is therefore less significant for sentencing purposes than it otherwise would have been, though it remains significant that it saved the Crown the cost and inconvenience of a trial, and relieved the Crown witnesses of any need to give evidence.

·     The respondent had had a troubled upbringing. 

·     He had no prior convictions relating to firearms.

·     He was well on the way to overcoming a drug addiction problem.

·     He had a problem with shoulder pain, and needed surgery for it.

8  The principal authorities relating to sentencing for armed robbery in this State have been reviewed by Estcourt J, for which I am grateful.  I need not repeat his analysis.

9  Despite the mitigating factors that I have listed, I have come to the conclusion that a head sentence of 3½ years' imprisonment did not adequately reflect the seriousness of this crime, particularly when one takes into account the fact that the respondent was armed with a loaded double-barrelled shotgun, and the fact that this was his third robbery.  In my view that head sentence was manifestly inadequate.

10  However, I do not think the same can be said of the parole ineligibility period of 27 months.  Under the Sentencing Act 1997, s17(3), a parole ineligibility period must be no less than half of the head sentence. A parole ineligibility period should be the minimum period that the sentencing judge determines that justice requires the prisoner must serve in prison, having regard to all the circumstances: Power v R (1974) 131 CLR 623 at 629; Carr v R (2002) 11 Tas R 362 at [96]; Richman v Tasmania [2011] TASSC 18 at [47].

11  I think the most appropriate course is to make orders that will leave the respondent with the same parole ineligibility period, but with a head sentence of 4½ years, which is twice the length of that parole ineligibility period.

12  I would therefore allow the appeal, quash the sentencing orders of the learned sentencing judge, and substitute a sentence of 4½ years' imprisonment with effect from 7 October 2012, with an order that the respondent not be eligible for parole until he has served 27 months of that sentence.

File No 1124/2012

DIRECTOR OF PUBLIC PROSECUTIONS v
DAMIEN WILLIAM HARRIS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
7 June 2013

13  I agree with the reasons of Blow CJ and the orders he proposes.  I have reached the conclusion that the sentence is manifestly inadequate revealing underlying error, having particular regard to the need for general deterrence.  I wish to add some brief comments regarding the use of past sentences by appellate courts, sentencing ranges and matters of legal principle regarding the crime of armed robbery and the objective of general deterrence.  These principles are uncontroversial, but their repetition discloses considerations which, together with the reasons of Blow CJ, compel me to the same conclusion.

14  I respectfully agree with all that Blow CJ has said about the factual basis for the sentence, including his characterisation of the criminal conduct, the offender's circumstances and his identification of the aggravating and mitigating factors in this case.  Comprehensive details of the facts, counsel's submissions and an extract from the judgment of Porter J in Braslin and Cowen v Tasmania [2010] TASCCA 1, concerning the proper approach of this Court on sentencing appeals, are usefully set out in the judgment of Estcourt J, which I have had the opportunity to read.  In considering the submissions, Estcourt J addressed the use of a loaded firearm as an aggravating factor and the mitigating effect of the respondent's plea of guilty, and I agree with those aspects of his Honour's reasons. 

15  In considering the adequacy of a sentence it is necessary for appellate courts to have regard to the history of past sentences for the particular crime.  Sentencing courts must consider such sentences in seeking reasonable consistency, "treatment of like cases, alike, and different cases differently", Hili v R (2010) 242 CLR 520 at [49] and [53]. However, caution is needed in having regard to past sentences as giving rise to a range or tariff. A sentencing range for armed robbery captures cases that are unalike in terms of criminal conduct and circumstances of the offender. For this reason, statistics regarding the crime of armed robbery in general, such as the median sentence for this crime, are not particularly helpful. There may be dangers associated with statistics of this kind, Wong v R (2001) 207 CLR 584 at [66], per Gaudron, Gummow and Hayne JJ. Statistics which focus on relevant sub-categories, such as cases involving firearms, may prove to be more helpful. However, it is only by examining the whole of the circumstances that have given rise to each sentence that "unifying principles" may be discerned: Hili at [54] quoting Simpson J in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [303] – [304] and Wong at [59]. It is the "statement of principles which affect how the sentencing discretion should be exercised" that gives rise to binding precedent, not the past sentence itself, Hili per Heydon J at [79], quoting Gaudron, Gummow and Hayne JJ in Wong at [57].

16  There is an additional reason for caution in having regard to the history of past sentences with respect to the crime of armed robbery and treating that as giving rise to a range.  In Tasmania there are too few cases that fall into a category of like cases for armed robbery to provide a discernible and established range for the kind of offending here.  The 16 sentences referred to by Porter J in Braslin and Cowen at [26] that fall in a band of three to six years' imprisonment for the period 2000 – 2010, relate to both crimes of armed robbery and aggravated armed robbery. The table provided by the Crown of sentences for armed robbery involving firearms and commercial premises imposed in the past five years contains just 12 sentences. It shows a spread of one year to seven years' imprisonment. The temporal overlap of these two sets of sentencing outcomes may be noted. In both instances, the number of like cases is too few to discern or establish a range relevant to this case. In the table provided by the Crown, far more serious conduct attracted far heavier sentences than would be under consideration here. In other cases, the individual circumstances were different or the role of the offender was not comparable. There are only a few that are broadly comparable. Comparison with a handful of cases that have some relevant similarities provides limited assistance: R v Dowie [1989] Tas R 167 at 186 – 187.

17  Even where there is an established sentencing range, that does not mean that the upper or lower limits of that range are the correct upper and lower limits, Hili at [54] and De La Rosa at [303].

18  There is essential guidance to be derived from the sentencing principles that are binding on the exercise of the sentencing judge's discretion.  It can be seen that the need for general deterrence is most prominent. 

19  Armed robbery has long been treated by the courts as a very serious crime, Osborn v R 58/1970, per Burbury CJ at 1, R v McFarlane (1993) 2 Tas R 201, per Crawford J (as he then was) at 210. General deterrence counts highly as a consideration in the sentencing process: Everett and Phillips v R (1994) 72 A Crim R 422 at 427. One of the reasons is the prevalence of the crime: Devine v R (1993) 2 Tas R 458. Over the past decades an increase in the incidence of the crime has been noted, McFarlane at 210, and more recently, Porter J in Braslin and Cowen analysed statistics and concluded it was increasing, although not at a dramatic rate: [21].

20  Cases involving loaded firearms are particularly serious, exposing victims to the risk of serious injury or even death.  Sentencing judges in Tasmania have also noted the severe psychological trauma or emotional harm that can result from armed robberies with firearms.  When crimes of armed robbery are conducted during business hours with the chance of customers present, they too are exposed to this risk.  As noted by Cox J (as he then was) in McFarlane: "an offender cannot know the physical and emotional make-up of his victims nor can he predict what effect the shock of the commission of the crime in their presence may have on them". 

21  Armed robbery is a crime against people, not just property.  In DPP v Burns [2012] TASCCA 11, at [54], Evans J referred to the judgment of Cox J in McFarlane and stated that the crimes then before the Court were not just offences against the premises, being the supermarkets the offender stole from, and not only against the staff whose interference was overborne by the offender.  He endorsed remarks made by Cox J that the crime was against the members of the public who by chance were at the scene of the robbery.  Evans J added that "they are very much crimes against the public at large and merit a sentence which reflects the sense of public outrage that their commission excites".  Here, while fortuitously only one customer was present and he was unaware of the robbery while it was in progress, there was the real potential for members of the public to be harmed physically or emotionally.  Of course, looking beyond those immediately affected, the broader community is affected by the sense of insecurity and fear that this crime engenders.   

22  Another consideration identified as relevant to general deterrence is the vulnerability of the premises to robbery.  Retail and relatively small commercial premises which are open for trade with the public at night are at risk in this way.  Sentencing judges in Tasmania have recognised that others fall into this vulnerable category such as taxi drivers, take-away food shops, and service stations.  The unprotected nature of these commercial premises as a soft target for offenders must bear on the need for general deterrence. For recognition of vulnerability as giving rise to the need for significant general and personal deterrence see Bryant v R, A53/1992 [1992] TASSC 33], per Crawford J, at 3. It is interesting to note that the guideline judgment of R v Henry (1999) 46 NSWLR 346 at [162] lists a number of characteristics of the crime which the New South Wales Court of Criminal Appeal has said should, in that jurisdiction, attract a particular range of imprisonment. One of the listed characteristics is that the victim is in a vulnerable position such as a shopkeeper or taxi driver. Vulnerability of victims by reason of occupation is specifically identified as an aggravating factor in the Crimes (Sentencing Procedure) Act (NSW) 1999, s21A(2)(l).

23  In considering these principles in the context of this case, I particularly have regard to the following. This was a robbery of a video rental store at night by an offender wearing a balaclava and holding a loaded double barrelled sawn-off shotgun.  The shotgun was pointed at an employee.  Three employees were exposed to a terrifying experience and, potentially, so would any members of the public who happened to be present.  Harm was caused to one of the employees. The offender's history of criminal offending included two convictions for robbery, one of them aggravated robbery.  It is plain that a sentence was required which gave substantial weight to the objective of general deterrence, directed particularly at repeat offenders. 

24  The respondent had only been out of prison some six months when he committed this crime.  I note that he had experienced imprisonment for the aggravated robbery quite recently, even though it was imposed in 2002.  His record shows that on 19 June 2007 he was paroled for three years and five days.  It must have been the aggravated robbery sentence that gave rise to that parole and the later revocation of parole in April 2010 which appears on his record.  The need for personal deterrence remains, notwithstanding progress towards his drug rehabilitation since his release from prison.    He committed the crime with a degree of premeditation.  The sentence needed to make it clear to him that regardless of his reason, whether it was driven by a need for drugs, or due to financial pressure or some other reason, his resort to such a serious crime as a solution to his problems would not be tolerated. 

25  I respectfully conclude that the sentence of three and a half years' imprisonment was manifestly inadequate, particularly having regard to the importance of general deterrence.  The sentencing discretion has miscarried by reason of the inadequacy of the sentence imposed.  I consider that the substituted sentence, proposed by Blow CJ, of four and a half years' imprisonment is appropriate.

26  I agree with Blow CJ that the parole ineligibility period of 27 months should not be disturbed.  The circumstances warranted early eligibility to apply for parole, particularly given the substantive progress the respondent has made with respect to overcoming a drug addiction. 

File No 1124/2012

DIRECTOR OF PUBLIC PROSECUTIONS
v DAMIEN WILLIAM HARRIS

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

ESTCOURT J
7 June 2013

The appeal

27  The Director of Public Prosecutions has appealed, on the sole ground of manifest inadequacy, against a sentence of 3½ years' imprisonment with a non-parole period of 27 months. The sentence was imposed on the respondent by Porter J on 5 December 2012. No specific error is asserted in the notice of appeal.

28  The respondent pleaded guilty on indictment to one count of armed robbery and to summary charges of possessing a loaded firearm in a public place and possessing a shortened firearm.

The facts

29  The summary of facts set out in the following paragraphs is taken from the appellant's written submissions. In the written submissions filed on behalf of the respondent, that summary was said to be undisputed.

30  At approximately 9.50pm on 7 October 2012, the respondent went to a video rental store on New Town Road. He was wearing a dark coloured balaclava and holding a loaded double barrelled sawn-off shotgun. Three employees were working at the time.  He approached the counter and pointed the gun at an employee and told him to put money into a plastic bag. That employee put money into the bag from the cash registers and was helped by the other two employees. The respondent said he needed more "fifties". Further cash was put into the bag. All six cash registers were emptied into the bag and the accused fled. The police were notified.

31  A short time later police officers attempted to stop the respondent, who was driving a motor vehicle in Glenorchy. The respondent failed to stop and while fleeing from police crashed his vehicle. The loaded firearm and balaclava were found in the respondent's vehicle. He was wearing clothing matching the description given by the employees of the video store. He was taken to the police station where he was searched. The plastic bag containing the money from the video store was found in his underwear. All of the money was recovered, being $1,118.

32  The respondent was interviewed and made full admissions. He said he needed the money as he did not receive enough from government benefits to live. While the respondent initially pleaded not guilty on complaint the matter was brought forward so that a guilty plea could be entered on indictment at an early stage.

33  The respondent had a long record of prior convictions for dishonesty and violence. These include a conviction for armed robbery in Western Australia in 2002 for which he was sentenced to 5 years' imprisonment and also a conviction for robbery in Tasmania in 2006 for which he was sentenced to 12 months' imprisonment.

The comments on passing sentence

34  On passing sentence, the learned sentencing judge, after summarising the facts, made the following comments:

"The defendant is now 36 years old.  He had a difficult upbringing.  His mother died at an early age and he had a difficult relationship with his father.  He was placed in care as a result, but was assaulted during one placement.  A blow to the head damaged his hearing and this has only been recently assisted by the fitting of hearing aids.  He left Tasmania in 1997 to work in both Queensland and Western Australia.  He was convicted of aggravated robbery in Western Australia in 2002 and sentenced to a lengthy term of imprisonment.  In September 2004 he was released on parole and apparently returned to Tasmania.  He continued to offend and, on 29 November 2006 on one count of robbery, was sentenced to 12 months' imprisonment cumulative to other terms of imprisonment he was then serving.  That crime was committed in breach of his parole. Generally he has a bad record for dishonesty, violence and other offences.  The underlying cause for much of this has been a drug addiction.  His use of narcotics and similar drugs started after he suffered a debilitating shoulder injury whilst working in Western Australia.  This is an ongoing problem causing him significant pain, but he hopes to have that rectified by surgery in the near future.  He has made several attempts to address his drug addiction without any great success.  He had been out of gaol for about six months at the time of this crime, and had been relatively drug-free.  Pharmacotherapy for his addictions was being arranged, and he understands that this will be able to be pursued whilst he is in gaol.  Accordingly it is suggested that there are hopes of his reformation, based on his shoulder pain being remedied through surgery, and proper treatment for his addictions.  His stated reason for committing this crime though had nothing to do with his drug addiction.  He had formed a relationship after his release from prison.  His partner became most unwell after a spider bite and was in hospital.  He was left to look after her three children, two of whom had been quite unwell, had recently been in hospital and had special requirements, and he was having great difficulty in finding enough money to maintain the family.  I am told that he thought about various ways in which he could obtain assistance, and acknowledges that he made a bad decision.  However, that decision was of course a considered one, not an impulsive one, and preparatory steps were obviously taken. 

I take into account the plea of guilty.  Indeed the matter was brought forward at his request so that it could be quickly dealt with.  Only two months have gone by since the crime.  I accept that those actions demonstrate his expressed remorse, and he is entitled to credit for those things.  I also take into account that the money has been recovered. However the gravity of the offending must be acknowledged.  A shortened shotgun was used.  That the shortened shotgun was loaded and pointed at a person is a significant aggravating factor.  The risk of injury or death by accidental discharge was real.  No doubt this was a very traumatic episode for all of the employees.  One employee has provided a victim impact statement.  She was the victim of a previous serious crime and the robbery has prolonged her recovery from that.  Generally she is not coping well. 

The sentence must reflect the denunciation of this type of crime, particularly that involving firearms, and even more particularly, loaded ones brandished at people going about their jobs.  Such offending causes great concern and anxiety in the community. 

Mr Harris, you are convicted and sentenced to 3½ years' imprisonment to commence on 7 October 2012.  Notwithstanding your previous history with breaches of parole, I consider that sufficient has been made out in relation to your possible rehabilitation to afford you a reasonable non-parole period.  I order that you not be released until you have served 27 months of that sentence.  There is a victims of crime compensation levy of $90 which will have to be paid within 28 days."

The appellant's submissions

35  Counsel for the appellant, Mr Shapiro, argued that given the respondent's lengthy record, in particular the two prior convictions for robbery, he was not entitled to leniency. He submitted that retribution, deterrence and the protection of society deserved significant weight when determining the appropriate sentence, and that mitigating factors deserved little weight.

36  Counsel for the appellant submitted that aggravating features of the crime were: that the crime was premeditated in that the respondent obtained an illegal sawn-off shotgun, ammunition and a balaclava and spent the day prior to committing the crime trying to think of alternative ways to make money (but ultimately deciding to commit the robbery); that the robbery was committed with a loaded double-barrelled sawn-off shotgun and that it was pointed towards one of the employees.

37  Counsel for the respondent, Ms Baumeler, disputed that the fact the shotgun was loaded was to be regarded as an important fact in sentencing. She submitted that the relevant fact in terms of sentencing was that the weapon was a firearm. For that proposition she relied on Braslin and Cowen v Tasmania [2010] TASCCA 1 at [27]; Everett and Phillips v R (1994) 72 A Crim R per Crawford J (as he then was) at 435 – 436 and McFarlane v R (1993) 2 Tas R 210 per Zeeman J at 222.

38  Those cases are not authority for the proposition that it is not an aggravating feature of the crime of armed robbery that the firearm used in the commission of the robbery was loaded.  They merely support the proposition, as noted by Crawford J in Everett and Phillips v R (supra) at 435 – 436, that the use of a firearm, loaded or unloaded, contributes to the gravity of the crime and the proposition as noted by Zeeman J in McFarlane v R (supra) at 222, that the fact that the firearm was not loaded is of little significance, for those who were being robbed had no way of knowing that fact.

39  In the present case the crime did have a very real impact on one of the employees in the video store. She provided a victim impact statement which narrated that not long before the robbery she was the victim of a very serious crime and the robbery prolonged her recovery, resulting in her needing additional counselling.

40  Counsel for the respondent also pointed to the fact that although the case against the respondent was overwhelming, he did arrange for the matter to be brought forward so that it could be quickly dealt with and the respondent pleaded guilty at an early stage. The learned sentencing judge accepted those actions of the respondent demonstrated his express remorse and that he was entitled to credit for those things. That approach was not challenged on this appeal and was plainly a matter going to the length of the appropriate sentence to be imposed.

41  I digress to observe that, even were it otherwise and the early plea of guilty was born of nothing other than acceptance of the inevitable, it would nonetheless have had the effect of saving the State the expense and inconvenience of a trial and of saving the victims of the crime, particularly the employee who required additional counselling as a result of the crime, from any concern about having to give evidence. The relevance of those matters in the context of an overwhelming case was discussed by the English Court of Appeal (Criminal Division), in December last year, in R v Caley [2012] EWCA Crim 282 at [23] – [24] (see also the earlier case of R v Paul Wilson [2012] EWCA Crim 386 at [29]). In the criminal jurisdictions of England and Wales legislation requires courts to take into account the fact of a plea of guilty. Consequent moderation of any sentence is expressed as a quantified discount, based on a sliding scale dictated by the Sentencing Guidelines Council guidelines. The maximum discount for an early plea of guilty of about a one-third reduction in sentence drops only to a suggested reduction in the order of one-fifth, however overwhelming the evidence may be. It must however be noted that the English reduction principle derives from the effective administration of justice and not purely as an aspect of mitigation (see R v Caley (supra) at [4] and [13]). This Court held in Pavlic v R (1995) 5 Tas R 186 that a plea of guilty is a mitigating factor like any other and should not be assessed as a separate secondary process, or as justifying a specific quantified discount.

42  Counsel for the appellant also submitted that further aggravating features of the robbery were that it occurred in a public place at a time when members of the public were likely to be present (one customer was present, although he did not witness the robbery), and that employees of a video store who are working at night are vulnerable to robbery.

Sentence contended for

43  As to the appropriate sentencing range the following written submissions were made on behalf of the appellant (footnotes omitted):

·     The range of custodial sentences in Tasmania for a single count for armed robbery from 1990 until 2000 was 3 months to 8 years.  Since 2000 a more punitive approach has been adopted, partly because of prevalence, but sentences of more than 7 years' imprisonment for a single count of aggravated robbery or aggravated armed robbery remain at the upper end of the range (Croswell v Tasmania [2012] TASCCA 1 per Evans J at [32] – [37]).

·     In Braslin and Cowen (supra) Porter J considered the prevalence of robbery and aggravated robbery and the range of sentences imposed since 2000, being after Professor Warner published the second edition of her text.  His Honour said:

"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."

·     An analysis of sentences imposed for robberies of business premises involving firearms and offenders with relevant prior convictions reveals that sentences at the upper end of the range are common.

·     The objective seriousness of a robbery will be affected by whether a weapon is used, the nature of the weapon and the manner in which it is used. "Robberies can be viewed in escalating seriousness of carrying a firearm, of a firearm being loaded, of the loaded firearm being discharged, and of discharge being deliberately aimed at a victim or important target." (R v Readman (1990) 47 A Crim R 181 at 185)

44  Helpfully, in support of the submission that sentences at the upper end of the range are common, counsel for the appellant attached to his written submissions a table of sentences imposed by this Court in the last 5 years for armed robbery involving firearms and commercial premises. That table is reproduced at the end of these reasons.

45  I note that the Tasmanian Sentencing Advisory Council in April this year released a consultation paper on  Sex Offence Sentencing.  The paper stated that in Tasmania between 2001 and 2011, 85% of sentences for a single offence of armed robbery 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 was said to have been 2 years, the minimum was 2 months and 3 weeks, and the maximum 6 years' imprisonment.

46  The ultimate submission of counsel for the appellant was that given that the respondent used a loaded firearm to rob commercial premises and pointed that firearm at a member of the public, the objective seriousness of the crime and the respondent's prior convictions meant that the matters put in mitigation amounted to little.  He submitted that the respondent should have received a head sentence at the upper end of the median range identified by Porter J in Braslin and Cowen (supra), namely, 3 to 6 years.

Discussion

47  In her book, K Warner, Sentencing in Tasmania, 2nd ed, The Federation Press, 2002, at 440, Professor Warner has said, on the subject of the basis of appellate review of sentencing in this State:

"The Court of Criminal Appeal has consistently followed the approach suggested by the High Court in House [(1936) 55 CLR 499 at 504] Cranssen [(1936) 55 CLR 509 at 519] and Harris [(1954) 90 CLR 652 at 656] and these cases are cited ad nauseum in sentencing appeals."

48  With that caveat in mind, I will content myself with setting out here what Porter J said in Braslin and Cowen (supra), concerning the approach of this Court on sentencing appeals. His Honour said at [31] – [34]:

"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'. …".

49  In my view, inadequacy is not "plainly apparent" in the sentence of 3½ years' imprisonment imposed by the learned sentencing judge in this case. It is within the range of sentences most commonly imposed for the crime of armed robbery. It is true that in Braslin and Cowen (supra) at [26] Porter J acknowledged that there were sentences for armed robbery and for aggravated armed robbery in excess of 6 years (as did Evans J in Croswell v Tasmania (supra) at [32] – [35]), but it is not suggested on behalf of the appellant that the respondent should have been sentenced outside the range of 3 to 6 years which Porter J identified in Braslin and Cowen.

50  Barwick CJ in Griffiths v R (1976) 137 CLR 293 at 310 said:

"Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle",

but I do not regard a sentence of 3½ years as a "gross departure" from a range of 3 to 6 years.  Indeed the learned sentencing judge placed the respondent's sentence within that very range, the range that his Honour himself had identified in Braslin v Cowen. He placed the sentence 6 months above the starting point of the range. He had himself observed in Braslin and Cowen that of the 16 sentences in the range of 3 to 6 years, most were at the lower end of that range. In my view the learned sentencing judge was justified in imposing the sentence that he did. That I might have placed the sentence slightly closer to mid-way in  that range, had the responsibility of sentencing been mine, is not to the point, as the cases to which I have just referred make clear.

51  In any event, it must be steadily borne in mind, as was pointed out by Underwood J (as he then was) in Inkson v R (1996) 6 Tas R 1 at 15, that having regard to a "range of sentences imposed for a crime does not mean that every sentence must fall within that range".

52  As Wright J said in R v Dowie [1989] Tas R 167 at 186:

"A court may frequently be aided by the provision of statistical data as to sentences previously imposed in this State … but in my view, it cannot allow such material to overshadow or displace its own evaluation of the gravity of the offence before it in the light of all the known facts and circumstances."

53  I accept all that has been submitted on behalf of the appellant as to the aggravating factors of the respondent's crime. With the exception of the respondent's early plea of guilty, which I regard in the particular circumstances of this case as warranting a reduction in the length of an otherwise appropriate term of imprisonment in accordance with the decision in Pavlic v R (supra), I accept that the respondent's lengthy record and two prior convictions for robbery meant that such other limited mitigating factors as there were deserved little weight.

54  I nonetheless detect no plainly apparent error in the sentence imposed by the learned sentencing judge. The term of 3½ years' imprisonment was within a recognised range and with some reduction in an otherwise appropriate sentence for an early plea of guilty, was acceptably within that range. Taken together with a non-parole period of 27 months that term paid sufficient regard to retribution, deterrence and the protection of society. It was within a proper exercise of the learned judge's sentencing discretion. That I might have imposed a slightly longer head sentence than a term of 3½ years does not demonstrate appealable error justifying the intervention of this Court.  Like Blow CJ and Wood J, I regard the non-parole period as appropriate.

Disposition

55  I would dismiss the appeal.

21011-08

DPP v Damien William Harris

Sentences for Armed Robbery involving firearms and commercial premises

Name	Crime(s)	Sentence of imprisonment	Notes
Gardner (24/10/12)	Aggravated armed robbery Assault Causing grievous bodily harm	6 years; non-parole 3 years	-     Pleaded guilty to aggravated robbery and assault at a very late stage of a trial -     Found guilty of causing grievous bodily harm -     21 years old -     Bad record of prior convictions -     Sawn-off rifle – not loaded -     Actual violence (grievous bodily harm) -     Money recovered -     Victim impact
Pickett (21/03/12)	Aggravated armed robbery	7 years; non-parole 5 years	-     Pleaded guilty -     34 years old -     Bad record of prior convictions including a conviction for robbery -     Sawn-off rifle – not loaded -     Actual violence – complainant required stitches -     Money recovered -     Victim impact
McKenzie (8/11/11) McKenzie (8/11/11)	Aggravated armed robbery	3 years and 8 months; non-parole 26 months	-     Pleaded guilty -     26 years old -     Bad record of prior convictions including convictions for aggravated robbery -     Shotgun – not known if loaded -     Victims were tied up and left -     Prescription drugs stolen -     Victim impact -     Not the instigator -     Did not provide or carry the gun -     Totality principal -     Drug addiction
Crosswell v Tasmania [2012] TASCCA 1	Assaulting a police officer Stealing Armed robbery Aggravated assault (during armed robbery) Unlawfully setting fire to property Perverting justice	8 years; non-parole 5 years For armed robbery and aggravated assault Evans J identified a sentence of at least 8 years if there had been priors for robbery and a plea of not–guilty. (see Evans J at [46])	-     Pleaded guilty -     27 years old -     Bad record but no convictions for robbery -     Sawn-off rifle – not known if loaded -     Actual violence (aggravated assault) -     Victim impact -     Money not recovered -     Totality
Braslin Braslin and Cowen v Tasmania [2012] TASCCA 1	Stealing Aggravated armed robbery Unlawfully setting fire to property	4 years; non-parole 2 years	-     Found guilty -     20 years old -     Priors for driving. Nothing relevant. -     Rifle or shotgun -     Victim impact -     Money not recovered
Cowen Braslin and Cowen v Tasmania [2012] TASCCA 1	Stealing Aggravated armed robbery Unlawfully setting fire to property	5 years five months; non-parole 2/3 of head sentence (3 years, 4 months)	-     Found guilty -     27 years old -     Bad record of prior convictions -     Rifle or shotgun -     Victim impact -     Money not recovered
Williams (7/12/10)	Armed robbery	3 ½ years; non-parole 2 ½ years	-     Found guilty -     32 years old -     Bad record of prior convictions including convictions for robbery -     Toy pistol and tomahawk -     Victim impact -     Money not recovered
Bennett (7/12/10) Bennett (7/12/10)	Armed robbery	15 months' imprisonment; non-parole 9 months	-     Found guilty -     30 years old -     Convicted as an aider (the driver) -     Evidence he initially tried to discourage co-accused (Williams) -     Bad record but no convictions for robbery Bennett -     (7/12/10)Toy pistol and tomahawk -     Suffered from ADHD -     Drug addiction
Jones (2/9/09)	Aggravated armed robbery	5 years; non-parole 3 years	-     Found guilty -     29 years old -     Bad record of prior convictions -     Two or three others involved -     Two carrying sawn off shotguns – not known if loaded -     Victim impact -     Money not recovered
Connelly (25/6/09)	Armed robbery	1 year; non-parole 9 months	-     Pleaded guilty -     38 years old -     Prior convictions for robbing pharmacies in order to obtain pain medication -     Hand gun – not known if loaded -     Work related injury resulted in addiction to pain medication
Duffy (30/07/08)	Aggravated armed robbery and Motor Vehicle Stealing.	2½ years; non-parole 18 months	-     Pleaded guilty -     Provided information about co-accused -     Without admissions would have been difficult to prove -     19 years old -     Prior convictions but none for robbery -     Co-accused carrying sawn off shotgun – not loaded -     Not the instigator
Barron 01/08/08 Barron 01/08/08	Aggravated armed robbery	15 months; approximately 9 months of which was suspended	-     Pleaded guilty -     34 years old -     Prior convictions but not for robbery -     Shotgun – not loaded -     Six children, the youngest 20 months and pregnant -     Financial difficulties -     Drug addiction -     Difficult and traumatic life -     Victim impact