R v Bullock
[2003] TASSC 37
•13 June 2003
[2003] TASSC 37
CITATION: R v Bullock [2003] TASSC 37
PARTIES: R
v
BULLOCK, Daniel John
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 505/2002
DELIVERED ON: 13 June 2003
DELIVERED AT: Hobart
HEARING DATES: 5 - 8 May, 3 June 2003
JUDGMENT OF: Slicer J
CATCHWORDS:
Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Miscellaneous matters - Hardship - Good character central to the well being of the family unit - Partial suspension of sentence of imprisonment.
Sullivan 9/1975; Weininger v R (2003) 196 ALR 451, considered.
Ryan v R (2001) 206 CLR 267; Dinsdale v R (2000) 202 CLR 321, followed.
Aust Dig Criminal Law [847]
REPRESENTATION:
Counsel:
Crown: M P Shirley
Respondent: C D Mackie
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Legal Aid Commission
Judgment Number: [2003] TASSC 37
Number of Paragraphs: 16
Serial No 37/2003
File No 505/2002
THE QUEEN v DANIEL JOHN BULLOCK
REASONS FOR JUDGMENT SLICER J
13 June 2003
Daniel John Bullock has been found guilty of the crime of armed robbery, contrary to the Criminal Code, s240. On 26 April 2003, Mr Bullock entered the Pembroke Hotel, Sorell armed with a knife. He demanded money and took some $3,100 in cash. No actual violence was involved, although the presentation of a knife caused fear and acquiescence. The case against the accused was circumstantial in nature but, consistent with the verdict, the conclusion is that the robbery was neither pre-planned or sophisticated in execution. The evidence suggests that, despite the offender's denial, he had a gambling problem. Both Mr Bullock and his wife were in employment, and the family income was sufficient for the maintenance of the family. The evidence suggests that before the robbery, Mr Bullock had been gambling on poker machines at a hotel on the eastern shore of Hobart. It is possible, and not inconsistent with the evidence, that the offender had engaged in gambling activity at the Pembroke Hotel some time before the actual robbery. It is clear that following the robbery, he went to another hotel which conducts gaming activities. Mr Bullock's car was not at his home as of midnight and was first observed by police at that place at about 3am. It is a reasonable inference that for much of the time between approximately 6.30pm and 1.30am, Mr Bullock was engaged in gambling. Mr Bullock, in his interview with police, denied the existence of a gambling problem, but did concede that on a previous occasion he had experienced domestic problems over the use of a credit card used for gambling purposes. The Court requested the provision of an assessment and background report from the Probation Service, but during the course of its preparation, Mr Bullock maintained his position that he did not have a problem. However, the sentence is determined on the basis that the robbery was committed either in order to further his capacity to gamble, or hide his losses. For the purpose of sentence, the Court will proceed on the basis that the act was neither premeditated nor sophisticated.
No actual violence or firearm was used, although the member of staff most immediately affected by the criminal conduct has, understandably, suffered trauma.
In R v Everett and Phillips A26/1994, the Court of Criminal Appeal determined that a head sentence of 12 months' imprisonment for a crime of armed robbery was too lenient, although in that case a firearm had been used. Given the use of a less dangerous weapon and the record of the offender, an appropriate head sentence of 15 months is, in my opinion, the appropriate sentence.
However, that assessment does not resolve the particular sentencing issue. In R v Everett and Phillips (supra), I attempted to deal with the assessment of disposition for young persons of otherwise good character who had committed a serious crime warranting an immediate custodial sentence. This case represents the difficulty in disposition of a person who has lived a productive life without transgressing the criminal law. However, good character, of itself, is not sufficient to warrant exculpation from the need for a substantial penalty for serious crimes.
The pre-sentence material, including work and character references, and a comprehensive pre-sentence assessment shows that the offender, now aged 44 years, has led a responsible and productive life. He married in 1984 and has two children aged 14 and 16. The commitment of the family to Mr Bullock is strong and their polite and intense interest in a husband and father shown during the whole of the trial process reinforces the assessment of the Probation Service that:
"… enquiries show the family to be closely knit and one that pays a great deal of attention to family values."
The family own their own home, subject to mortgage, and Mr and Mrs Bullock have proved to be good and reliable providers for the family unit. The assessment of the Probation Service indicates that:
"The accused and in particular his spouse live and work in a close-knit community in the Sorell-Carlton district. Enquiries with neighbours and work colleagues show him to be a hard working, soft-spoken family man and one whose current predicament is seen as totally out of character."
Mr Bullock is in employment and his present contract-based employment is likely to be changed to that of full time permanent employment with a reputable company. Loss of that employment will imperil the continued ownership of the family home. In her book, Sentencing in Tasmania, 2 ed, Professor Warner refers to cases such as Sullivan 9/1975; Cadman 15/1985; Riley v Tilyard B9/1990 in concluding that hardship on an offender's family is not a significant mitigating factor in the sentencing process.
In Sullivan (supra), Green CJ, as a member of the Court of Criminal Appeal, stated at 3 - 4, that in his view:
"… the possibility of hardship to the applicant's family was not a factor which the learned Trial Judge should have taken into account in imposing sentence. It is unhappily the case that frequently a sentence of imprisonment will impose hardship upon a convicted person's dependants, but that consideration must not be permitted to deter a Judge from imposing a sentence of imprisonment if he thinks it appropriate. I adopt the observations made by Bray, CJ in Moore v Fingleton (1972) Vol 3 SASR 164, when he said at p167:-
'There is, no doubt, a plausible argument for the proposition that the welfare of the community, in the broadest sense, might be better served by the appellant being at liberty to look after her daughter, whose future might be irrevocably prejudiced and, conceivably, her life itself put in jeopardy by the appellant's detention under this sentence. But the function of the courts is to promote the welfare of the community by doing justice and if in the individual case the doing of justice has socially detrimental consequences, there are other agencies of the community who can appropriately intervene.'
The fact that a sentence of imprisonment might impose exceptional hardship upon a convicted person may, in some circumstances, be a relevant consideration, but I do not think that the hardship claimed by the applicant in the present case should have influenced the sentence. A sentence of imprisonment often imposes financial hardship because it deprives the convicted person of his earning capacity and, no doubt, in the case of many convicted persons this involves the result that they will not be able to meet recurring commitments. But without more, hardship of that kind would not justify a decision not to impose a sentence of imprisonment if such a sentence were otherwise called for."
In R v Georgiadis [No 5] [2001] TASSC 88, Underwood J, despite the factual difficulties presented, had regard to hardship which might be caused to a child aged 3 if both parents were sent to prison, and summarised the relevant principles in the following terms at par29:
"The authorities take the view that generally speaking hardship to dependants is not a mitigatory circumstance except in extreme cases. See R v Mitchell [1974] VR 625; Wayne v R (1992) 62 A Crim R 1; Boyle v R (1987) 34 A Crim R 202. In Thomas, Principles of Sentencing (2nd ed) at 212, the learned author cites as an exception to the general proposition, the case of an offender who is the mother of young children and states that that circumstance may have some effect in relation to less serious offences. This proposition was discussed by Malcolm CJ in Sinclair v R (1990) 51 A Crim R 418 at 431."
However, it is not in every case that the circumstances of the family are given little weight (Vaughan v R (1982) 4 Cr App R (S) 83; Haleth v R (1982) 4 Cr App R (S) 178). Fox and Frieberg, Sentencing (State and Federal Law in Victoria), 2nd ed at 11.602, cite the observations of the Full Court of Victoria in Polterman, 2/8/74, that:
"… when one appeals for mercy on the grounds of hardship to a wife or family that the accused ought to have had regard to that before embarking on a life of crime, and the Court cannot be blamed because it deals with an accused on the merits having regard to the gravity of the offence, the past circumstances, and so on. The Court is not so inhuman as not to be very sorry for those placed in the position of this wife and child because of the criminal activities of the husband, but our task is not to yield to pleas based on sentiment or emotion. However humane we may be we have a duty to perform, and that duty we perform as a Court of Appeal in allowing sentences to stand unless we see something has gone wrong in the sentencing."
In circumstances where the offender is of good character, in the positive sense as interpreted by the High Court in Weininger v R (2003) 196 ALR 451, and that good character has been central to the well being of a family unit, I believe there to be less constraint in paying regard to the effect on others. Unlike the case of Polterman (supra), this is not one involving a person "embarking on a life of crime". Whilst I have determined the head sentence, modern sentencing practice does not require separate processes in the determination of the ultimate disposition (Baumer v R (1988) 166 CLR 51; Dinsdale v R (2000) 202 CLR 321) and the determination of the final order requires consideration of all the circumstances of the case, not just the issue of rehabilitation of the offender. The court should first consider whether a sentence of imprisonment is warranted and, if so, whether that sentence should be suspended in whole or in part. (Dinsdale (supra)). In that case the court did not accept the view expressed by Murray J, a member of the Western Australian Court of Appeal that:
"If the respondent's otherwise good character could not sway the court from the view that for purposes of general deterrence imprisonment was required having regard to the seriousness of the offences, I can see no basis upon which that good character could sway the court from the imposition of imprisonment to be immediately served."
Kirby J, at pars79 - 81, stated:
"The common failure of Parliaments to state expressly the criteria for the suspension of a term of imprisonment has led to attempts by the courts to explain the considerations to which weight should be given and the approach that should be adopted R v Liddington (1997) 18 WAR 394 at 398-401. The starting point, given emphasis by the terms of s76(2), is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a 'soft option' when the court with the responsibility of sentencing is 'not quite certain what to do' R vO'Keefe [1969] 2 QB 29 at 32.
The question of what factors will determine whether a suspended sentence will be imposed, once it is decided that a term of imprisonment is appropriate, is presented starkly because, in cases where the suspended sentence is served completely, without reoffending, the result will be that the offender incurs no custodial punishment, indeed no actual coercive punishment beyond the public entry of conviction and the sentence with its attendant risks. Courts repeatedly assert that the sentence of suspended imprisonment is the penultimate penalty known to the law and this statement is given credence by the terms and structure of the statute. However, in practice, it is not always viewed that way by the public, by victims of criminal wrong-doing or even by offenders themselves Bagaric (1999) 22 University of New South Wales Law Journal 535 at 544-549; cf Dao v The Queen unreported, Court of Criminal Appeal of Western Australia, 22 January 1999 at 6. This disparity of attitudes illustrates the tension that exists between the component parts of this sentencing option: the decision to imprison and the decision to suspend.
A number of attempts have been made to resolve this tension and to provide guidance concerning the circumstances in which a sentence of imprisonment should be suspended. There is a line of authority in Australian courts that suggests that the primary consideration will be the effect such an order will have on rehabilitation of the offender R v Percy [1975] Tas SR 62 at 74; R v Causby [1984] Tas R 54 at 67; Davies v Deverell (1992) 1 Tas R 214 at 220; R v GP (1997) 18 WAR 196 at 234; R v Liddington (1997) 18 WAR 394 at 398-399, 406, which will achieve the protection of the community which the sentence of imprisonment itself is designed to attain. But most such statements are qualified by judicial recognition that other factors may be taken into account See eg R v Liddington (1997) 18 WAR 394 at 399, 406. The point is therefore largely one of emphasis.
In that process, the court may have regard to the character of the offender and the impact on the family unit, at least as a component of consideration of the prospects for rehabilitation. If the family unit be damaged or destroyed as a consequence of lengthy imprisonment, then the prospects of rehabilitation are diminished and the prospect that others might be, by reason of the destruction or damage, more likely to engage in anti-social conduct.
Good character
Distinction has been drawn between good character and reputation (Melbourne v R (1999) 198 CLR 1), absence of prior convictions as against misconduct (Weininger (supra)), and character generally, as distinct from the commission of the crime for which the offender is to be sentenced (Ryan v R (2001) 206 CLR 267, McHugh J, at 275). The relevance of "moral worth" was considered by McHugh J in Ryan when he stated, at 276 - 277, pars30 - 31:
"Another, but less articulated, reason for considering 'good character' in the sentencing context appears to involve the idea that a 'morally good' person is less deserving of punishment for a particular offence than a 'morally neutral or bad' person who has committed an identical offence. Walker and Padfield have described as 'remarkable' Walker and Padfield, Sentencing: Theory, Law and Practice, 2nd ed (1996) at 53-54:
'... cases in which the court is influenced by meritorious conduct which has nothing to do with the offence. Men have had prison terms shortened because they have fought well in a war, given a kidney to a sister, saved a child from drowning or started a youth club. Such cases are interesting because they seem to result from two assumptions: (i) that offenders are being sentenced not for the offence but for their moral worth; and (ii) that moral worth can be calculated by a sort of moral book-keeping, in which spectacular actions count for more than does unobtrusive decency. This can be illustrated by the ambivalent remarks of the [English Court of Appeal] in Reid (1982) 4 Cr App Rep (S) 280:
"While this Court would not usually interfere with a sentence because the defendant had committed an act of bravery, we think that if the Recorder had known about this incident it may well be that he would have formed a different view of the appellant: he might have come to the conclusion that the appellant was a much better and more valuable member of society than his criminal activities had led him to suppose".'
Notwithstanding the 'remarkable' rationale for taking into account a prisoner's otherwise good character, at common law it is an established mitigating factor in the sentencing process. What makes a person of otherwise 'good character' will necessarily vary according to the individual who stands for sentence. It is impossible to state a universal rule."
In this case, the Court accepts the offender to be of "good character" in the sense of "moral worth or good". It accepts that his "moral worth" has been conducive to the well being of a family unit and removal of that person from the unit will adversely impact on the well being of two teenagers. The observation of the Court during the trial and the sentencing hearing was that they were intensely committed to the offender and their collective future.
Competing interests
The nature of the crime warrants the imposition of a sentence of imprisonment. The effect on the victims of the crime, the need for retribution by the general community, and its perception of the validity of the sentencing process warrant the imposition of an immediate custodial term. There is little need, in this case, for the sentence to reflect a need for future deterrence. The character of the offender and the prospects of rehabilitation would, of themselves, permit suspension of portion of the sentence. But it is the likelihood of loss of employment, the probability of loss of the family home and its impact on the family and, in particular, the possible future harm to the two children of the offender which cause me to regard this as an exceptional case, and to suspend all but one month of the sentence. The need for immediate and actual sanction will be accommodated by the imposition of the full permitted order for community service and a condition of suspension that the amount suffered by the owner of the property be repaid within a specified period. In some respects the effect of the orders is similar to the imposition of "weekend detention" and a return to the historic sanction of financial compensation.
Orders
(1)Daniel John Bullock be convicted of the crime of armed robbery.
(2)Daniel John Bullock be sentenced to a term of imprisonment for a period of 15 months, such sentence to commence as and from 3 June 2003.
(3)The operation of such sentence be suspended as and from 3 July 2003 on condition that for a period of four years, Daniel John Bullock commit no crime or offence involving dishonesty or violence to the person or property and within six months of the date of release from prison pay the sum of $3,100 to Mr Frank Morgan.
(4)Daniel John Bullock undertake 260 hours of community service.
(5)A compensation order in the amount of $3,100 in favour of Mr Frank Morgan.
The victims of crime compensation levy of $50 is to be paid within three months.
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