Hall v Tasmania
[2015] TASCCA 6
•15 April 2015
[2015] TASCCA 6
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Hall v Tasmania [2015] TASCCA 6
PARTIES: HALL, Jamie Reginald
v
STATE OF TASMANIA
FILE NO: 453/2014
DELIVERED ON: 15 April 2015
DELIVERED AT: Hobart
HEARING DATE: 2 March 2015
JUDGMENT OF: Tennent, Porter and Pearce JJ
CATCHWORDS:
Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Aggravated armed robbery and armed robbery where knife used - Sentence imposed when offender already serving sentence - Totality principle.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: G Barns and D Osz
Respondent: A Shand
Solicitors:
Appellant: Leonard Fernandez
Respondent: Acting Director of Public Prosecutions
Judgment Number: [2015] TASCCA 6
Number of paragraphs: 67
Serial No 6/2015
File No 453/2014
JAMIE REGINALD HALL v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
PORTER J
PEARCE J
15 April 2015
Order of the Court:
Appeal dismissed.
Serial No 6/2015
File No 453/2014
JAMIE REGINALD HALL v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
15 April 2015
On 27 March 2014, the appellant was found guilty by a jury of one count of aggravated armed robbery. He was jointly charged with Garry Scott Sullivan. The charge arose out of events at Cooley's Hotel at Moonah on 13 February 2013. On 10 April 2014, the appellant pleaded guilty to one count of armed robbery. That charge arose out of events at the Lenah Valley Newsagency and Post Office on 21 August 2013.
On 8 May 2014, the appellant was sentenced by Wood J in respect of both matters. He was sentenced on a global basis to serve seven years and three months' imprisonment to commence at the expiration of sentences he was then serving. It was also ordered that he not be eligible for parole until he had served a minimum of three years and nine months of the sentence imposed.
The appellant lodged a notice of appeal which contained five grounds. They related to an appeal against both conviction and sentence. At the hearing of the appeal, grounds 1, 2 and 4 were abandoned. What remained was an appeal against the global sentence only. The grounds of appeal were in the following terms:
"3That the learned Trial Judge erred in law in that the total head sentence was manifestly excessive in the circumstances.
5That the learned Trial Judge erred in law in failing to have regard to the principle of concurrency by ordering that the sentence for the two armed robbery counts be served cumulatively on the term of imprisonment that the Appellant is serving."
Appellant's custody status at the time of sentence
At the time the appellant was sentenced by Wood J, he was already serving sentences. On 7 November 2013, the appellant was sentenced in respect of dishonesty matters committed between July 2012 and February 2013, and a period of six months' imprisonment was imposed to commence from 7 November 2013. On 20 December 2013, the appellant was sentenced to serve 15 months' imprisonment with a non-parole period of seven months and two weeks in respect of an armed robbery committed on 22 November 2012. On the same date, a suspended sentence was activated which saw another three months added to the sentences to be served. The last two sentences were both cumulative upon the first.
In terms of head sentences, as at the date upon which her Honour sentenced the appellant, he was serving head sentences totalling two years with effect from 7 November 2013. Counsel for the State calculated that, allowing for remission on the six month sentence imposed on 7 November 2013, prior to the sentence imposed by Wood J, the appellant would have been eligible to apply for parole after serving 14 months and two weeks from 7 November 2013. By the date of her Honour's sentence, the appellant had served six months of that period, leaving a balance of eight months and two weeks to serve before being eligible for parole. The addition of a further non-parole period of three years and nine months meant the appellant would still have to serve, from the date of her Honour's sentence, four years, five months and two weeks before being eligible for parole.
Of course, the cumulative effect of her Honour's sentence, as far as head sentences were concerned, was that the appellant was to serve a total head sentence of nine years and three months with effect from 7 November 2013 for offending which took place over a period of a little over 12 months from July 2012 to August 2013.
Facts relating to Cooley's Hotel robbery
Wood J set out the facts relating to this event in her comments on passing sentence. No issue has been taken with the accuracy of those facts. They were as follows:
"At approximately 6:30pm, on 13 February 2013, the defendants were driven by an accomplice into a large car park behind Cooley's Hotel. The driver stopped the vehicle near the rear entrance to the hotel. That entrance provides access to the gaming bar. The defendants got out of the vehicle wearing balaclavas, made from a pair of leggings, with eye holes cut out. The hoods of their jackets were pulled over their heads, and one or both carried a knife and a back pack. In the gaming bar there were several patrons. A bartender, a young female employee, was counting cash in a small office, situated at one end of the bar. A young male bartender was working behind the bar, covering the gaming bar and the public bar. There was a door between the two bar areas which was open. The young female bartender was 19 years of age. This was her first paid employment; she had been working there for approximately one month.
The two defendants entered the gaming area. They jumped over the top of the bar. One of the men entered the office. The weight of the evidence demonstrates that this was the defendant Mr Hall. However, it does not matter. The men were acting in concert as co-principals, and they are each responsible for the other's acts. Inside the office, the defendant demanded money and then grabbed cash from the bench and an unlocked safe.The female bartender retreated to the back wall of the room, shielding her face with her hands, terrified. The male bartender moved into the gaming bar and was confronted by the second defendant, who came at him with two knives pointed at him, yelling, 'Get back'. As the bartender moved back into the public bar area, the door between the two bars was slammed shut. The second defendant grabbed cash from the till behind the gaming bar. The defendants fled, having stolen a total of $8,760. People chased after them. One off-duty employee got reasonably close, but stopped when the defendants pointed a knife at him. The vehicle left and drove out on to Albert Road, getting away."
As to the impact upon the employees at the hotel, her Honour said:
"The defendants subjected two young employees and members of the public to a very stressful and disturbing experience. The female bartender was traumatised. That is obvious on the CCTV footage. She has suffered psychological symptoms involving depression and anxiety. For some time, her capacity to work was affected. Her psychological condition has improved but she continues to struggle with symptoms. If she hears noises reminding her of the incident, such as doors slamming and yelling, she feels physically sick. She found giving evidence at the trial a terrifying experience due to her fear of the perpetrators.
The male bartender has been significantly affected. He was incapacitated for work for some months, and has been unemployed since. He is unlikely to be able to return to bar work. He has needed professional assistance and has been diagnosed with anxiety, depression and post-traumatic stress disorder. He has been consulting a psychologist regularly since the incident.
Of course, the incident was also alarming for patrons who were present and such crimes have an impact upon the wider community giving rise to fear, anger and insecurity."
The appellant was arrested in relation to this matter on 3 June 2013. He was given bail and was on bail when he committed the newsagency robbery a little over two months later.
Facts relating to the newsagency robbery in August 2013
The facts relating to this incident were also set out by her Honour. They were as follows:
"On the 21 August 2013, Mr Hall committed the crime of armed robbery involving the Lenah Valley Newsagency and Post Office on Augusta Road. He pleaded guilty to that crime.
He drove his mother's vehicle past the Lenah Valley Newsagency and Post Office. He then parked it nearby in a side street. There were three occupants who remained in the vehicle. He changed his shoes and put on a hooded jumper. As he walked to the newsagency he placed a homemade balaclava over his head and put a black sock on his right hand. He had a 30cm kitchen knife in the pocket of his jumper.
He entered the newsagency at about 4:30pm. An employee was at the counter clearing the floats in the cash register. She was 15 years of age. Mr and Mrs Carney, the owners of the newsagency, were behind the counter in the post office area. There were no customers present.
The defendant ran into the newsagency, jumped over the counter and lunged towards the 15 year old girl with the knife held above his head, pointed downwards towards her. She screamed and moved backwards. Mr and Mrs Carney ran to her aid. Mr Carney put himself between the defendant and the two women as Mrs Carney pulled her employee onto the ground away from the defendant.
Mr Carney grabbed at the defendant, and as he did so noticed the knife. The defendant thrust the knife towards Mr Carney, causing him to move backwards. The knife connected with Mr Carney, slicing through two layers of his clothing, in the central area of his chest. The defendant lunged at Mr Carney with the knife a second time and yelled, 'You're fucken dead, you're fucken dead, I'm gonna kill you, where's the money'. This time the knife sliced the pocket area of Mr Carney's vest positioned over his stomach area.
The defendant opened one of the tills, and took the money from it and then demanded to be told where the rest of the money was. He was yelling at Mr Carney and moving towards him in a threatening manner. Mr Carney pointed to the other tills and told the accused it was in there. The defendant went to the other tills, still yelling at Mr Carney and threatening to kill him, while holding the knife menacingly towards him.
The defendant then jumped the counter and ran off, while chased by Mr Carney. No doubt due to Mr Carney giving chase, the vehicle that the defendant had arrived in was driven away. The defendant was later located by the police on foot in the area. They found $2,235 in his sock. He was interviewed and he denied being involved in the crime."
As to the impact on the employees and operator of the newsagency, and of the crime generally, her Honour said:
"These were vulnerable premises. Fortuitously, there were no customers present, but there was every chance that other members of the public might have been present such as children on their way home from school or elderly customers. This is a particularly serious example of armed robbery. Mr Hall's intimidation of the complainants involved an intense level of aggression, one of whom was vulnerable due to her age. The three complainants were exposed to a volatile situation of real and immediate danger. Mr Hall's violence towards Mr Carney could easily have resulted in fatal injury.
The young staff member says that the crime has had a devastating emotional effect upon her. She describes feeling on edge and alienated from family and peers. Her school results last year suffered. She experiences flashbacks every day. She found it distressing to see the owners under threat. She has needed counselling and still feels fearful at work.
The owners found the experience traumatic. Afterwards, Mr Carney worked very long hours because he felt he needed to support his staff. This took its toll upon him. He has become very stressed about security issues. He installed new security measures which cost around $2,000.
Mrs Carney experienced frequent flashbacks and suffered nightmares. She is worried about it happening again and what may happen to her husband if it does. She still gets nervous at work at times."
Appellant's submissions
Counsel for the appellant submitted that the sentence imposed by the learned sentencing judge was manifestly excessive. He further submitted that:
· by making the global sentence of imprisonment her Honour imposed cumulative upon those which the appellant was already serving, the sentence imposed was crushing when regard was had to the appellant's age "and his prospects";
· the application of the totality principle meant the avoidance of a crushing sentence which might cause signs of rehabilitation to "wither on the vine";
· where an offender was sentenced in respect of multiple offences or was already serving a sentence at the time he was sentenced, the sentence imposed must reflect an overall assessment of the offender's criminal conduct, bearing in mind the principle of totality;
· considerable assistance could be derived from a general comparison of the offender's conduct with that of other like offenders.
As to the first of those propositions, the appellant was 27 years old at the time the Cooley's Hotel robbery was committed. He had turned 28 by the time of the Lenah Valley Newsagency incident. While in chronological terms that may appear to be "relatively young", in offending terms the appellant had been before the courts since he was 17 years old. He had 77 convictions for offences of dishonesty which included burglary, stealing, motor vehicle stealing and attempts at the same prior to the start of the period of offending in 2012 and 2013. In addition, there were convictions for drink- driving, negligent driving, dangerous driving, assault, evade police, breach of bail and other offences indicative of a general disregard for the law. The appellant had been given parole in April 2009 which was revoked some months later. Her Honour noted in her comments that the appellant committed the offence of stealing a week after the Cooley's Hotel incident.
In my view, little weight can be given to the appellant's age, given that offending background and no error in her Honour's consideration of that issue is apparent.
As to "his prospects" which were said to show signs of rehabilitation, none were actually referred to in the course of the appeal. Her Honour was told that three days after the appellant was sentenced in December 2013 he had received a Certificate I in an access to work and training program. He had also completed a Get Smart Program which was designed to teach offenders how to overcome the types of behaviours which led them to offending. The appellant had commenced a long term vocational program designed to assist offenders with skills that will help them gain employment on release. Her Honour recognised the steps the appellant had taken and noted that at least he had made a start in the right direction, but that a great deal more was required over a very long time.
Her Honour clearly evaluated the information provided and accepted that a start towards rehabilitation had been made, but little more. With respect, that conclusion was entirely proper given the appellant's offending background over a number of years during which no signs of reform were evident.
There was no submission to explain the impact of her Honour's sentence on the appellant's prospects of rehabilitation, save that it was "crushing".
The application of the totality principle
Counsel for the appellant mounted very similar arguments as here in the matter of Rae v State of Tasmania [2010] TASCCA 8. Crawford CJ said about the submissions then made at [17]–[25]:
"17 It is not the appellant's case that the sentence imposed by the learned judge was manifestly excessive when viewed alone; it is that the sentence was manifestly excessive when regard is had to the sentence he was already serving and the so-called totality principle.
18 The principle is well recognised. It was summarised by King CJ in the Court of Criminal Appeal of South Australia in R v Rossi, unreported 20 April 1988: 'There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.' It serves to ensure that an offender is not subjected to '"a crushing sentence" not in keeping with his record and prospects'. Thomas, Principles of Sentencing, 2nd ed (1979) at 57 – 58; Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 304.
19 The principle may apply in a number of circumstances. For example, if a judicial officer is imposing a series of sentences then notwithstanding that each sentence has been properly calculated and each properly made cumulative on the others, nevertheless the aggregate of the sentences should be reviewed and consideration given to whether the aggregate is just and appropriate.
20 It also applies to situations where one sentence is being imposed for multiple offences, and to cases such as the present, where an offender is being sentenced at a time when he or she is serving a sentence of imprisonment. Postiglione v R at 308. That was explained by Hunt CJ at CL in R v Gordon (1994) 71 A Crim R 459 at 466: 'When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable.'
21 Counsel for the appellant relied on the following statement in the judgment of Anderson J in the Court of Criminal Appeal of Western Australia in Vlek v R [1999] WASCA 1038:
'I think it is also recognised (and this may be simply another aspect of the totality principle that when a second sentencing court is considering the imposition of a cumulative sentence, there are mitigating factors arising out of that circumstance itself. When a sentence is to be cumulative on sentences already being served there is usually a discount, and the reasons for this include, no doubt, the instinctive acceptance by sentencing courts that a cumulative sentence is, in itself, a harsher sentence than one of the same length which is to take effect immediately. Jarvis v The Queen unreported, CCA SCt of WA, 14 June 1993, especially per Ipp J. Furthermore, as was pointed out in Mill (1988) 166 CLR 59, the second sentencing court may see (or assume) that the prisoner has made progress towards rehabilitation during the term of the first sentence. In addition, there is not the same demand for retribution where the prisoner has already suffered loss of liberty and where there has already been an 'emphatic denunciation by the community' of his or her criminal behaviour and attitude. See Cross: 'The English Sentencing System' (Butterworths 1971) at page 104. Neither is there the same requirement in the second sentence for personal deterrence because that most likely will already have been achieved in large measure by the first sentence. In other words, not as much emphasis is required in passing the second sentence on matters such as prevention, denunciation, deterrence and reform as would otherwise be the case. Therefore, the conventional sentencing objectives may be able to be achieved by a cumulative sentence which is shorter than the sentence that must properly be imposed when the sentence is not to be cumulative.'
22 Counsel for the State did not dispute any of the matters of principle to which reference has been made.
23 For the appellant, it was pointed out that there was a considerable overlap of the respective periods of offending for which he was sentenced by the magistrate and by the judge. For example, of the offences of dishonesty for which the magistrate sentenced him, 29 were committed in the same period of a little over two months during which he committed all of the offences of dishonesty for which the learned judge sentenced him, and another 19 were committed in the period of two months prior to that. It was also pointed out that substantially the same types of offences were before the magistrate and the judge.
24 It was argued for the appellant that given the facts, including that during his time in prison, he was working towards overcoming his addiction to drugs, which had caused so much of his offending behaviour, the sentence imposed by the learned judge was manifestly excessive and demonstrated that his Honour had not given sufficient weight to the totality principle.
25 Counsel for the State submitted the contrary. He argued that the sentence of the learned judge complied with the totality principle and was not manifestly excessive."
Counsel for the appellant also referred in this case to a decision of the Court of Appeal in Queensland in R v Schmidt (2011) 210 A Crim R 29. He quoted from some remarks of Fryberg J at [42] where his Honour said, after dealing with the circumstances of the appellant in that case:
"His criminal history suggests that he does not have strong prospects of rehabilitation, but if the hopeful signs referred to above bear fruit, there is no reason to think that his sentence will cause that fruit to wither on the vine."
With respect, the remarks were simply comments by a judge in a somewhat poetic way about the impact of a particular sentence on a particular offender. At no point did his Honour say what counsel for the appellant set out in par3 at the top of 3 of his written submissions.
Counsel for the appellant ultimately accepted that the crimes for which the appellant was sentenced were serious crimes and required a sentence promoting general deterrence. On both occasions knives were used and the impact on the victims was significant. He submitted that, notwithstanding those factors, there were competing factors when determining an appropriate sentence, being the seriousness of the offending and the serious commitment to rehabilitation. He also submitted that, given the relatively short time period between the armed robbery in November 2012 and that in February 2013, there was room for a consideration of making part of her Honour's sentence concurrent with that imposed in December 2013.
Comparison of offender's conduct with like conduct of other offenders
Counsel for the appellant attached a table to his written submissions in which he noted a number of sentences imposed in this State for armed robberies involving knives and commercial premises. He submitted that her Honour's sentence was manifestly excessive when regard was had to the sentences recorded in that table. Counsel conceded that in a case where an offender had a substantial criminal record, a sentence of imprisonment of between two and four years with a non-parole period of one half was within range by reference to that table. However, he submitted that in effect when the Court was dealing with two events any global sentence had to be adjusted downwards to reflect the overall criminal conduct.
The respondent's submissions
Counsel for the respondent referred to the text, Sentencing in Tasmania, 2nd ed, in which Professor Kate Warner summarised at 332 and 335 sentences imposed for armed robbery between 1990 and 2000. The range of sentences for a single count was between three months and eight years, while for multiple counts with at least one armed robbery the range was between three months and nine years. For aggravated armed robbery the sentencing range for a single count was between three months and five years, while that for multiple counts with at least one aggravated armed robbery was between 15 months and 13 years.
Counsel also referred to an analysis by Porter J in Braslin and Cowen v Tasmania [2010] TASCCA 1, in which his Honour considered the data in Professor Warner's text and the use of comparative sentences generally. His Honour said at [25] and [26]:
"25 These observations lead to a related point. That point relates to the use of comparative sentences in the appeal process. In determining whether a sentence is manifestly excessive or manifestly inadequate, this Court is customarily referred to a range of penalties established by comparable cases. A discernible 'tariff' (to use the word in that sense), can only be gleaned from sentences imposed over a period of time. In R v Dowie [1989] TASSC 44; [1989] Tas R 167 at 186, Wright J warned that this tariff approach may be of little value, 'particularly where cases supposedly illustrative of the tariff are few, or the relevant facts are not directly comparable'. In my view, consideration of whether a case is comparable or not, must include broader external and contemporary factors relevant to the sentencing discretion, such as prevalence. A sentence imposed at a time when prevalence of the particular crime was not high, cannot be said to be comparable to a particular case in which the crime has been committed at a time of significantly increased prevalence. To that extent, what Wright J continued on to say in Dowie, is applicable in this context; that is, a court may frequently be aided by the provision of statistical data but that 'it cannot allow such material to overshadow or displace its own evaluation of the gravity of the offence before it in light of all the known facts and circumstances.'
26 What then, in terms of a broad range, can be made of the statistics? 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."
Counsel for the respondent went on to note the appellant's personal circumstances and mitigating factors. In particular, apart from those factors already referred to, she noted that the appellant had had a long-standing addiction to drugs which had impacted negatively on his life. She also noted he had pleaded guilty to the Lenah Valley Newsagency crime thus saving the complainants from having to give evidence.
Counsel also noted aggravating features of the offending for which the appellant was sentenced. She noted:
· The crimes were premeditated in that they involved preparation by dressing in a particular way to avoid identification and leaving any trace evidence.
· The use of a balaclava for disguise not only assisted with that but also had a tendency to exacerbate the fear felt by victims.
· Knives were pointed at staff and threats were made.
· The crimes were committed in a confronting, frantic and intimidating manner. Counsel for the appellant submitted this might be considered a feature of many such robberies. However the intimidation factor achieved by people running into premises and jumping counters is significant.
· The use of actual violence in the newsagency in that the accused hit the complainant with a knife causing a cut in his clothes. That proximity had the potential for significant injury in circumstances where the appellant had jumped the counter and was moving round acting in a threatening manner.
· The impact on victims in two premises was significant.
· Both incidents occurred in commercial premises. In the hotel not only were there staff but there were patrons. The types of premises targeted were vulnerable in the sense they would be known to have cash on hand, and in the case of the newsagency, minimal security.
· The appellant committed the crimes while the subject of a suspended term of imprisonment and while he was on bail.
· The appellant involved a third party as a driver in the Cooley's Hotel robbery.
· No money was recovered in the Cooley's Hotel robbery.
Discussion
The appellant was sentenced for one count of aggravated armed robbery and one count of armed robbery. The crimes were committed on 13 February 2013 and 21 August 2013. On 22 November 2012 he had committed another armed robbery. He was arrested in relation to that five days later and, at the time he committed the two 2013 crimes, he was on bail in respect of the November 2012 matter. All three crimes were committed while the appellant was the subject of a suspended sentence imposed on 5 April 2012.
The appellant committed other crimes. On 8 July 2012, 20 August 2012, 5 September 2012, 15 October 2012 and 20 February 2013, he committed the crime of stealing. One of those occasions also involved the commission of a burglary. The last stealing occurred a week after the Cooley's Hotel robbery. Those crimes were all committed while the appellant was the subject of the April 2012 suspended sentence, the first stealing occurring within three months of that suspended sentence being imposed.
It is clearly evident that police intervention in the appellant's activities, bail orders and suspended sentences did nothing to stop his offending. The offending in November 2012, while it involved a knife and the robbery of a newsagency, features of later offending, when compared with the offending next in time at the hotel, showed that the seriousness of the appellant's offending was escalating. With respect, by the time the appellant stood for sentence in May 2014, it would have been clear that a significant deterrent sentence was required.
The 2013 offending involved the appellant yet again targeting either busy or potentially busy venues where he knew there would be cash. He disguised himself more thoroughly than he had before, and seemed willing, having regard to the events at the Lenah Valley Newsagency, to use actual violence.
Counsel for the appellant submitted that, because the Cooley's Hotel incident occurred less than three months after the armed robbery in November 2012, her Honour should have considered that the two events were part of a course of conduct, and made at least part of the sentence she imposed concurrent with that imposed in relation to the November 2012 matter. I accept that may have been an option for her Honour. However, as I have indicated, the 2013 crimes with which her Honour was dealing represented, in my view, an escalation of the appellant's behaviour, and by the time of that sentence a clear deterrent sentence was required, not only for the appellant but generally. That was against a background of an offender with an appalling criminal history who had shown little interest in reform and scant regard for previous penalties.
While I accept that the global sentence imposed by her Honour was a significant one against the background of the sentences the appellant was already serving, it reflected the factors I identified in the previous paragraph and, in particular, the need to send a strong message to the community that behaviour like the appellant's will not be tolerated. The sentence also allowed the appellant the maximum chance to demonstrate his commitment to rehabilitation. It would be trite to say that it is not sufficient to justify appellate intervention for an appellate court to form a view that a sentence might be on the high side. Clear error must be demonstrated.
I am not satisfied in the circumstances of this case that the appellant has demonstrated any error on the part of Wood J such as to justify interference with the sentence she imposed. I would dismiss the appeal.
File No 453/2014
JAMIE REGINALD HALL v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
15 April 2015
I have read the reasons for judgment of both Tennent J and Pearce J. I generally agree with what each of my colleagues has written. Each seems to have expressed a different view of the particular weight of the sentence, but whatever precise view is taken, the sentence is not manifestly excessive and no error of principle has been shown. I would also dismiss the appeal.
File No 453/2014
JAMIE REGINALD HALL v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
15 April 2015
On 8 May 2014 the appellant, Jamie Reginald Hall, was sentenced by Wood J for two crimes. He was found guilty by a jury of the aggravated armed robbery of Cooley's Hotel on 13 February 2013. He also pleaded guilty to the armed robbery of the Lenah Valley Newsagency and Post Office on 21 August 2013. Her Honour imposed one sentence. She sentenced the appellant to imprisonment for seven years and three months. Her Honour reduced the sentence by three months to take account of a period the appellant had already spent in custody. The effective sentence was thus seven years and six months. Her Honour ordered that the sentence be served cumulatively to the sentences of imprisonment to which the appellant was subject at the time of sentence, and that the appellant not be eligible for parole until having served three years and nine months of the sentence she imposed.
The notice of appeal to this Court contains five grounds. Grounds 1 and 2 were abandoned before the hearing of the appeal. In the course of the hearing ground 4 was abandoned. The two remaining grounds concern the sentence and assert:
"3 The learned trial judge erred in law in that the total head sentence was manifestly excessive in the circumstances.
…
5 The learned trial judge erred in law in failing to have regard to the principle of concurrency by ordering that the sentence for the two armed robbery counts be served cumulatively on the term of imprisonment that the appellant is serving."
For the reasons which follow the appeal should be dismissed.
The circumstances of the crimes
At about 6.30pm on 13 February 2013, the appellant and Garry Sullivan were driven by another man to the car park behind Cooley's Hotel at Moonah. The appellant and Sullivan both wore balaclavas made from leggings and hooded jackets pulled over their heads. One or both carried a knife or knives and a backpack. They went through the rear door of the hotel into the gaming bar where there were several patrons, and a young male bartender. In the small office at one end of the bar a 19 year old female employee was counting cash. Either the appellant or Sullivan jumped the bar. The other entered the office. The offender in the office demanded money and grabbed cash from the bench and the unlocked safe. The other offender confronted the bartender by pointing two knives at him and yelling "Get back" and took cash from the till. As the two men fled a knife was pointed at an off duty employee who had been in the bar and chased them out. They were then driven away having stolen $8,760.
The appellant was not immediately apprehended. He was arrested on 3 June 2013 and admitted to bail.
The second crime was committed at about 4.30pm on 21 August 2013. The appellant drove to the Lenah Valley Newsagency and parked nearby. He had three passengers who all stayed in the car. The appellant walked into the newsagency wearing a homemade balaclava and a hooded jumper and with a black sock on his right hand. The owners of the business, Mr and Mrs Carney, were present with a 15 year old female employee. The appellant produced a 30cm kitchen knife. He jumped the counter, held the knife above his head and lunged towards the young employee. She stepped back. Mr Carney put himself between the appellant and the two females. The appellant thrust the knife at Mr Carney so close that it cut the clothing on his chest. The appellant thrust the knife a second time yelling "You're fuckin' dead, you're fuckin' dead, I'm gonna kill you, where's the money". Again the knife cut Mr Carney's clothing, this time near his stomach. The appellant yelled at Mr Carney demanding money. He threatened to kill him and moved towards him menacingly with the knife held out. The appellant took something over $2,000 from a till and left. Mr Carney gave chase. One of the passengers drove off in the car leaving the appellant behind. He was found by the police in the area not long afterwards. When interviewed he denied involvement in the crime.
The appellant's personal circumstances and prior convictions
At the time of sentence the appellant was aged 28. He is now 29. His record commences in 2002 when he was 17. In 2006 he was sentenced by a magistrate to imprisonment for a large number of summary offences including for dishonesty and violence. He was imprisoned again for assault in August 2008. Late in 2008 a magistrate made a drug treatment order under the Sentencing Act 1997, s 27B, for summary dishonesty offences. The order had a custodial part of imprisonment for ten months. The appellant quickly breached that order by non-compliance and re-offending. He committed more dishonesty offences and was sentenced to imprisonment for six months on 30 April 2009, a further ten months on 3 July 2009, and another 18 months on 29 October 2009. A further sentence of imprisonment of six months was imposed on 30 August 2010 for dangerous driving. He was released on parole on 4 April 2011 but his parole was revoked on 1 December 2011. On 5 April 2012 he was sentenced to imprisonment for six months, three months of which were suspended for three years, for dangerous driving, unlawful possession of property, evading and assaulting police, refusing to submit to the taking of blood, and driving while disqualified, all committed on 16 January 2012 after the completion of his earlier sentence. At the same time he was sentenced to imprisonment for a further three months for 20 other summary offences committed while he was on parole including burglary (two counts), stealing (three counts), trespass, dangerous driving, driving while disqualified (two counts), assaulting police, evading police (two counts), resisting police, refusing a breath analysis and breaching bail (three counts).
After his release he continued to offend. On 7 November 2013 he was sentenced by a magistrate to imprisonment for six months commencing on that day for five counts of stealing and one count of burglary committed between July 2012 and February 2013. Then, on 20 December 2013, the appellant was sentenced by Tennent J to a further term of imprisonment for 15 months, cumulative to the sentence imposed on 7 November 2013, for the armed robbery of a newsagent in a shopping centre at Glenorchy on 22 November 2012. Her Honour ordered that the appellant not be eligible for parole until having served seven months and two weeks of that sentence. The circumstances of that offence are particularly relevant. The appellant entered the newsagency wearing a hooded jumper and sunglasses. He jumped the counter and menaced the employees with a knife before making off with about $310 in cash. When sentencing the appellant Tennent J ordered that the three-month suspended sentence imposed by the magistrate on 5 April 2012 be activated and served cumulatively to the six-month sentence imposed on 7 November 2013.
The appellant has a long-standing addiction to drugs which contributes to a recurring pattern of re-offending after release. Previous sentencing comments refer to an unstable childhood and education cut short. He had a promising career as a boxer. He held employment until 2006 but lost that job because he was sent to prison and has not worked since. While in prison he completed a behavioural course aimed at overcoming abuse of alcohol and drugs. He also completed and is continuing with vocational courses directed towards obtaining employment on his release.
Ground 5 – concurrent or cumulative sentences
It is convenient to deal with this ground first. It asserts that the learned trial judge "erred in law in failing to have regard to the principle of concurrency by ordering that the sentence for the two armed robbery counts be served cumulatively on the term of imprisonment that the appellant is serving".
In her sentencing remarks the learned sentencing judge said this:
"I have had regard to the overall sentence that will be imposed by me both in terms of the head sentence and the non-parole period to ensure that it is just and appropriate to the totality of the offending behaviour. Noting the sentence I impose today will be cumulative to other sentences, I have had regard to the totality of that offending as well and the cumulative effect of such sentences. There has been a reduction in the sentence I attribute to each of the two crimes before the Court today to take account of this principle."
In my view the assertion that her Honour "failed to have regard to the principle of concurrency" is not made out. Just because her Honour did not specifically state that she had considered whether her sentence should be partly concurrent with other sentences does not mean she failed to have regard to the question. Her Honour specifically referred to the cumulative effect of the sentences, the converse of concurrency. Although the ground of appeal refers only to the sentences the appellant was serving, her Honour took account of the cumulative effect of her sentence in two ways. Firstly, she took account of the cumulative effect with the other sentences to which the appellant was already subject. Her Honour then took into account the total effect of the sentence she imposed for the two crimes with which she was dealing. Her remark that she reduced the sentence she attributed to "each of the two crimes before the Court today" strongly suggests that she notionally determined a sentence for each of the two crimes, although she did not specify what it was, and reduced the sentence she imposed for each, taking into account their total effect.
If it was intended by this ground of appeal to contend that the learned sentencing judge was in error to impose a sentence which was wholly cumulative to the sentences the appellant was already facing, there is no merit in that contention either. Whether the sentence her Honour imposed was concurrent to those sentences, and, if so, to what extent, was a matter for her Honour's discretion: Sentencing Act, s 15(1). I see no error in the exercise of the discretion. The circumstances of the appellant's offending would ordinarily require primarily cumulative, rather than concurrent, sentences. This is not a case in which the imposition of cumulative sentences involves application of an incorrect principle. In his work Principles of Sentencing (Heinemann Educational Books Ltd, 2nd ed, 1979), DA Thomas refers to the principle of concurrency of sentence as the "one-transaction rule" and states at 53:
"The one-transaction rule can be stated simply: where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive."
In 1974 in Dicker v Ashton (1974) 65 LSJS 150, Wells J stated at 151:
"I am of the opinion that, unless the circumstances are exceptional or the offences in question are the terminal product of separate and independent courses of criminal conduct that happen to have occurred together, a court is not ordinarily justified in imposing cumulative sentences of imprisonment for offences that are of a similar character or ordinarily associated, and that simply represent facets or the one course of conduct."
The following passage from the judgment of Wells J in Attorney General v Tichy (1982) 30 SASR 84 at 92-93 was cited with approval by Gleeson CJ in Johnson v The Queen (2004) 78 ALJR 616:
"The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration."
The crimes for which the appellant was sentenced were committed on 13 February 2013 and 21 August 2013. The earlier robbery was committed on 22 November 2012. The summary offences of dishonesty for which the appellant was sentenced by a magistrate on 7 November 2013 were committed on five separate occasions between 8 July 2012 and 20 February 2013. The last of those offences, a stealing to the value of $3,000 was committed after, but before he was apprehended for, the Cooley's Hotel robbery. Although the crimes were of a similar nature and have in common the contribution of abuse of illicit drugs, her Honour was entitled to conclude that the offences she was dealing with involved quite separate and distinct criminal conduct. The crimes are discrete and independent criminal acts. They are, for the most part, separated in time. The three most serious offences occurred over a period of about nine months. There was some overlap between the Cooley's Hotel robbery and one of the stealing charges dealt with by the magistrate, but the overall effect of that is inconsequential. Adequate recognition of the appellant's criminality necessitated recognition of the separate victims of each crime and the impact the crimes had on them.
This ground of appeal should fail. That is not to say, however, that the cumulative effect of the sentences is not to be taken into account in considering whether the sentence imposed is manifestly excessive. The appellant's submissions about ground 3 of the appeal are directed to that issue and it is to that ground I now turn.
Ground 3 – is the sentence manifestly excessive?
To succeed in an appeal on the ground that a sentence is manifestly excessive the appellant must show that the sentencing discretion must have miscarried and the sentence is definitely outside the appropriate range of sentences for the crime: Everett v The Queen (1994) 181 CLR 295, per McHugh J at 306. 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 [13]. Manifest excess must be plainly apparent: Dinsdale v The Queen (2000) 202 CLR 321, per Gleeson CJ and Hayne J at [6]. The sentence must be "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505.
The appellate court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised the sentencing discretion in a different way: Lowndes v The Queen (1999) 195 CLR 665 at [15]. A wide measure of latitude should be accorded sentencing judges: Postiglione v The Queen (1997) 189 CLR 295 per Kirby J at 336. There is no single correct sentence and a sentencing judge "should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected": Johnson v The Queen(2004) 78 ALJR 616 at [26], cited with approval in Markarian v The Queen (2005) 228 CLR 357 at [25]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 at [58].
The principal submission made by counsel for the appellant is that the sentence is manifestly excessive when its total effect is taken into account. The totality principle "requires a sentencing judge to impose a sentence or sentences which reflect the overall criminality of the offending for which the offender has been convicted": Contin v The Queen [2012] VSCA 247 at [38]. It is the final step in the sentencing process which requires the sentencing court to consider the "overall picture", taking into account the objective criminality of the conduct and matters of mitigation: R v Creed (1985) 37 SASR 566 at 568; Postiglione (above) per Kirby J at 340-341. The effect is to reduce the sentence which an offender would otherwise receive. The principle is described by McHugh J in Postiglione at 307–308:
"The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: see Mill v The Queen (1988) 166 CLR 59 at 63. In Kelly v The Queen (1992) 33 FCR 536 at 541 O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi, Unreported, Court of Criminal Appeal of South Australia, 20 April 1988:
'There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.'
The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged: R v Holder [1983] 3 NSWLR 245 at 260. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences: Holder at 260." [Footnotes incorporated.]
These principles have been approved and applied in Tasmania: see for example Rae v State of Tasmania [2010] TASCCA 8. In Director of Public Prosecutions v Farmer (2005) 13 Tas R 418 Slicer J, with whom Evans J agreed, said at [5]:
"Totality is a reflection not of an artificial exercise, but of an attempt to evaluate overall criminal responsibility, achieve relativity and avoid the imposition of a 'crushing sentence', leaving the offender bereft of future change (Postiglione v R (1997) 189 CLR 295; Mill v R (1988) 166 CLR 59, Wise v R [1965] Tas SR 196)."
Allowance for totality can be achieved in a number of ways. The issue is closely related to the issue of concurrent and cumulative sentences. In cases where more than one sentence is imposed the court may set a sentence for each and then determine a total effective term by making one or more sentences concurrent, either wholly or in part: Pearce v The Queen (1998) 194 CLR 610 at 623-624. The court may aggregate the sentences but lower the sentence for each offence from that which otherwise would have been imposed: Mill v The Queen 166 CLR 59 at 66-67. Another method is the one which finds statutory recognition in Tasmania, which is to not specify a sentence for each offence, but to impose an aggregate or "global" sentence. In this case the learned sentencing judge imposed one sentence for both crimes she was dealing with: Sentencing Act, s 11(1)(a). Her Honour had a discretion to impose separate sentences, or to impose one sentence for both crimes. In imposing one sentence, her Honour was not to impose a sentence that exceeded the aggregate of the proper sentences for each of the crimes. As I earlier pointed out, the sentence imposed, when taken with her Honour's remarks, strongly suggests that she imposed a sentence which was the equivalent of two cumulative notional sentences with an allowance in each for totality. If that was the approach her Honour took, then it does not disclose error. Her Honour was entitled to tailor a sentence appropriate to the circumstances of this case in that way. She did not specify the sentences she would have imposed for the individual crimes. Counsel for the appellant submitted that the learned sentencing judge should have identified the individual sentences for each offence so as to consider sufficient regard to "concurrency", but conceded there was "no requirement to do so". It was not contended that her Honour was in error by not doing so[1]. Rather, the appellant contends that the result constitutes error in that it is a manifestly excessive sentence, not that an error in principle occurred in the approach taken. The approach of the learned sentencing judge is consistent with law and sentencing practice in this jurisdiction, which was examined by Evans J in Director of Public Prosecutions v Farmer (above) at [22] and following. His Honour pointed out, at [35]:
"This is not to say that if and when a sentencer chooses to impose a global sentence on a multiple offender, the sentencer would not have in mind the penalties the offender is likely to have received had he or she been sentenced separately for each offence."
[1] It is thus unnecessary to consider further a series of cases in South Australia which suggest that, in order to promote transparency in sentencing and not to conceal error, aggregate sentences should still be constructed by reference to the common law doctrine of concurrent and cumulative sentences. Under a strict application of that approach, a sentencing judge should first determine what sentence each separate offence should attract, and then consider whether the sentences should be concurrent or cumulative, before determining the aggregate sentence: see for example R v Place (2002) 81 SASR 395 at 408; R v Capalbo [2005] SASC 47; R v McNamara (2009) 105 SASR 38; R v Copeland (No 2) (2010) 108 SASR 398 and R v Belzacki [2012] SASCFC 4. That has not been the approach in Tasmania. To my mind, the South Australian cases are not authority for the proposition that the failure to first determine separate sentences constitutes error of law. In R v McNamara, decided in 2009, it was said at [27] that the approach is to be adopted "as a general rule" and that a "precise or arithmetical approach" is not called for.
The principle of totality has application in this case in two respects. Firstly, it applies to the two crimes for which the appellant was being sentenced and for which one sentence was imposed. Secondly, the principle applies because the appellant was sentenced at a time when he was already serving or was liable to serve other sentences of imprisonment: R v Gordon (1994) 71 A Crim R 459; Postiglione v The Queen (above) at 308; Harland-White v The Queen [1998] TASSC 1; Draper v Tasmania Police [2004] TASSC 120; Director of Public Prosecutions v Farmer (above) per Evans J at [24]; LWR v Lusted (2009) 19 Tas R 233, and Rae v State of Tasmania (above) per Crawford CJ at [18]. As Hunt CJ at CL in R v Gordon (above) pointed out at 466:
"When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable."
It was first for her Honour to determine the appropriate sentence for the crimes for which she was to sentence the appellant. 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. Those authorities emphasise the seriousness of the crimes: Harris per Wood J at [20]; R v Everett and Phillips (1994) 72 A Crim R 422 at 427. The two crimes which are the subject of the impugned sentence are, even though no firearm was involved, serious examples. Both crimes had the following features, all of which pointed to a heavy sentence:
· there was premeditation and planning;
· the appellant wore a disguise, which added to the terror to which the victims were exposed;
· although no firearm was involved, both crimes involved considerable threatened violence. A knife was used in a particularly aggressive and confronting way, especially in the newsagency robbery;
· the crimes took place when staff and customers were likely to be present, and, in the case of the hotel, customers were in fact present;
· the crimes involved vulnerable commercial premises;
· the crimes had a significant impact on victims. The two staff members from Cooley's Hotel, and the proprietors and staff member from the newsagency were affected. All suffered from serious and ongoing psychological trauma and emotional harm. The nature of the appellant's conduct was such that he must have realised that his victims were likely to be terrified and traumatised.
A review of sentences for such crimes was undertaken in Braslin and Cowen v Tasmania (above), DPP v Burns (above) and Director of Public Prosecutions v Harris (above). In Braslin and Cowen, Porter J said at [26]:
"What then, in terms of a broad range, can be made of the statistics? In Sentencing in Tasmania 2nd ed 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."
In this case I would consider that a sentence in the range of three to five years for each crime, taking into account the circumstances of the crime and the circumstances of the appellant, would not disclose error. The appellant's record and his circumstances when the crimes were committed suggest that an even harsher sentence would not necessarily have indicated error. In the past, he had not been deterred by suspended or actual sentences of imprisonment or the prospect of loss of parole. He had not taken the opportunity for reform arising from probation orders and a drug treatment order. Thus, these crimes manifest a continuing attitude of disobedience of the law, and a particular need to protect the public: Veen v The Queen(No 2) (1988) 164 CLR 465 at 477. The aggravated armed robbery of Cooley's Hotel on 13 February 2013 was committed while the appellant was subject to a suspended sentence, and after having been admitted to bail for the robbery committed on 22 November 2012. The armed robbery of the Lenah Valley Newsagency and Post Office on 21 August 2013 was also committed while the appellant was subject to a suspended sentence, on bail for the two other armed robberies, and also subject to a probation order made by a magistrate on 22 April 2013. Such factors are aggravating. They demonstrate contempt for the law and for authority and an abuse of the freedom allowed by bail: Wisniewski v Tasmania [2007] TASSC 25 per Crawford J (as he then was) at [10]–[11], and the authorities there referred to. The appellant had demonstrated no remorse. For the Cooley's Hotel robbery, he was not entitled to mitigation arising from a plea of guilty. His plea of guilty to the Lenah Valley robbery was in the face of overwhelming evidence, and he was entitled to little reduction from the otherwise appropriate sentence. Whilst the appellant had displayed some recent positive signs while in prison, he had spurned the many opportunities for rehabilitation he had been offered, including a drug treatment order under the supervision of the Magistrates Court. The prospects of his rehabilitation were not such as to outweigh the need for deterrence, condemnation, punishment and protection of the public as the principal sentencing factors. In the result, I am wholly unsatisfied that an aggregate effective sentence of imprisonment for seven years and six months, with a non-parole period of three years and nine months, is definitely outside the range of appropriate sentences for these crimes.
It is necessary also to consider the aggregation of the sentence imposed by her Honour with the sentences the appellant already faced. It is to this issue that the appellant's submissions were primarily directed. The appellant submits that by not ordering the sentence her Honour imposed be served at least partly concurrently with the sentences the appellant already faced, the result was a total term of imprisonment which was manifestly excessive. The sentences of imprisonment imposed upon the appellant can be summarised as follows:
· six months from 7 November 2012 (for summary offences);
· three months (activated suspended sentence);
· 15 months with a non-parole period of seven months and two weeks;
· seven years and six months with a non-parole period of three years and nine months (because her Honour's sentence was reduced to seven years and three months to take account of time spent in custody before sentence).
The sentences were all ordered to be served cumulatively. The non-parole periods will also be cumulative: Corrections Act 1997, s 71(2). The total effect of the sentencing orders is that the appellant is sentenced to imprisonment for nine years and six months (nine years and three months from 7 November 2012). He will not be eligible to apply for parole until he has completed five years, one month and two weeks of the sentences. He will however be entitled to remissions granted under the Corrections Act, s 86. It is agreed by the parties that the total effect of the sentences is that the appellant will be entitled to apply for parole in late 2017, by which time he will be 32.
In my view, the proper question for this Court is whether the sentence imposed by the learned sentencing judge took the total of all sentences imposed on the appellant beyond a just and appropriate measure of his total criminality to the point of error. All of the circumstances of all of the offending are to be taken into account, including the circumstances of the appellant. In other words, were he to be sentenced at the same time for all offences, is a sentence of imprisonment for nine years and six months with a non-parole period of just over five years manifestly excessive for his overall criminality? In my view, it is not. The appellant's criminal conduct included three very serious armed robberies, one of which was an aggravated armed robbery because it was committed in company. The criminality involved in the last two robberies has already been referred to. The first robbery on 22 November 2012 was also a serious crime. It included many of the features to which I have already referred as pointing to a heavy sentence – aggressive use of a knife, wearing a hooded jumper and sunglasses, vulnerable commercial premises and impact on victims. Of course he is not to be re-sentenced for that crime but the level of criminality it involved is relevant to the question now before this Court. The suspended sentence and the summary offences also, in each case, arose from substantial criminality. Although, at the time of sentencing for the first armed robbery, he had not been sentenced for that crime before, his record for dishonesty and violence was considerable. His record of continued offending indicated contempt for the law, and the court orders to which he was subject cast doubt on the prospects for his rehabilitation and discounted any claim to remorse.
Many cases treat as integral to the concept of totality that an overall sentence is not a "crushing sentence". See, for example, the passage in Director of Public Prosecutions v Farmer (above) at [5] to which I referred earlier. Totality does not apply only in cases where the aggregation of sentences imposes an "otherwise crushing burden": Johnson v The Queen (above) at [22]. However it is commonly referred to as part of the consideration of totality. A "crushing sentence" was described by Nettle JA (as he then was) in R v Beck [2005] VSCA 11 at [22], as one in which "the total effective sentence is so long as to risk provoking within the applicant a feeling of helplessness and the destruction of any reasonable expectation of a useful life after release". In the same year his Honour, in a joint judgment with Chernov JA in R v MK (2005) 155 A Crim R 367, said at [125]:
"Views may differ as to whether any given sentence is crushing. The test most often applied is whether the sentence is of such a length that it would provoke a feeling of helplessness in the applicant when and if released or whether it connotes the destruction of any reasonable expectation of useful life after release. But length of sentence is not always determinative and there are cases in which the length of a sentence may almost certainly have those effects and yet still not be manifestly excessive. In the end, as so often has been observed, it is a matter of impression and there is little that may usefully be said about it."
There is some recent judicial discussion about whether the principle of totality should incorporate the notion of a "crushing sentence" at all. Some doubt about the proposition was expressed by Fryberg J in the Court of Appeal in Queensland in R v Schmidt (2011) 210 A Crim R 29. The other members of the court did not express a view. Conversely, in Western Australia, the issue of a "crushing sentence" has been elevated to part of a two-stage consideration of totality. For example, in Roffey v The State of Western Australia [2007] WASCA 246 McLure JA (as she then was) observed at [24]-[25]:
"The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally ...
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release ... An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing." [Citations omitted.]
Whatever may be the correct position, I do not regard the sentence imposed in this case as "crushing", at least so as to indicate error. A harsh sentence was called for, and adequate provision was made for any feeling of helplessness held by the appellant, or the destruction of any hope of reform he may harbour, by allowing the opportunity for parole after close to the minimum permissible period: Sentencing Act, s 17(3). His age on release will certainly not leave him without any reasonable expectation of a useful life, and the Court should be optimistic about the prospect of the appellant's release on parole. I venture to repeat the passage from the judgment of Evans J, sitting as a member of the Court of Criminal Appeal in Devine v The Queen [2003] TASSC 52 at [30], with which I respectfully agree:
"The totality principle applies to both the head sentence and a non-parole period, Mill v R (1988) 166 CLR 59. Subject to the need to preserve a sentence's capacity to achieve all its intended objectives, in my view, a court should, in its approach to fixing a parole eligibility date, if any, be optimistic about a prisoner's rehabilitation prospects. If that optimism proves to be misplaced, it is reasonable to expect that the prisoner will not be paroled as the Parole Board is only empowered to grant a prisoner parole after considering the matters detailed in the Corrections Act, s72(4), which include the rehabilitation of the prisoner, the likelihood of the prisoner re-offending, and the protection of the public."
This ground of appeal should fail.
Result and order
In my opinion each ground of appeal fails. I would dismiss the appeal.
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