R v S

[1990] TASSC 74

Serial No 73/1990
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              R v S  [1990] TASSC 74; A73/1990

PARTIES:  R
  v
  S

FILE NO/S:  352/1990
DELIVERED ON:  18 December 1990
JUDGMENT OF:  Underwood J

Judgment Number:  A73/1990
Number of paragraphs:  29

Serial No 73/1990
List "A"
File No 352/1990

R v S

REASONS FOR JUDGMENT  UNDERWOOD J

18 December 1990

1. The Court is faced with a difficult sentencing problem, the resolution of which requires a careful weighing and assessment of conflicting principles applicable to the proper exercise of the sentencing discretion. The prisoner has pleaded guilty to the following crimes:

Claremont High School:

20 July 1990:   Burglary (2), Stealing (2).

Pizza Hut, Claremont:

12 August 1990:          Aggravated Armed Robbery (1), Motor Vehicle Stealing (1).

Island State Credit Union:

5 September 1990:       Aggravated Armed Robbery (1).

1. The prisoner was aged 16 at the time of the commission of all crimes. He turned 17 nine days ago. During the course of the plea in mitigation it became necessary to take evidence to resolve some disputed issues of fact. The prisoner gave evidence and was cross–examined by the Director of Public Prosecutions. Consequently, I had the advantage, rarely available to a sentencing judge, of forming an impression of the prisoner from his demeanour and the answers he gave in the witness box. Where there is a conflict between the evidence of the prisoner and the evidence given by witnesses called by the Crown I reject the prisoner's evidence and accept that given by the other witnesses. The prisoner demonstrated a maturity beyond his years, admitted in one respect that his evidence had not been truthful and admitted that he had on more than one occasion lied to the police. What follows constitutes my findings of fact.

The Circumstances Surrounding the Commission of the Offences

Claremont High School

1. On the evening of 20 July 1990, in the company of two other youths, the accused consumed alcohol in the grounds of the Claremont High School. One of the other two then broke a window and the three entered the school. Inside the building, two screwdrivers were picked up and used to force a door to gain entry to another part of the school building. From here, the prisoner and his companions stole some stereo equipment, a pair of binoculars and a starter pistol. The stolen property was initially hidden in a nearby waste bin and later taken to the prisoner's home. Two days later the prisoner was apprehended and, in an interview with the police, admitted commission of the offences.

The Pizza Hut

1. Two or three days prior to 12 August 1990 the prisoner, in company with an 18 year old and a 20 year old, decided to commit an armed hold up at the Pizza Hut, Claremont. The prisoner's sister was a former employee at the Pizza Hut. Whilst she was employed there, the prisoner visited the premises on several occasions. He thereby knew where the takings were kept and that every Sunday night the safe would contain money from the weekend's trading. Two or three days before the robbery the prisoner and his co–offenders sawed the barrel off a shotgun and then hid it, three pairs of overalls and three balaclavas under a disused railway platform near the scene of the crime. On the Sunday night of the robbery the three young men retrieved the hidden clothes, dressed in them and went to the Pizza Hut just as the shift manager was locking up. Led by the prisoner who was holding the shotgun, the three approached the shift manager as he was leaving the premises. Pointing the gun at him the prisoner told the manager to go back inside and he would not be hurt. I am unable to make a finding whether the shotgun was then loaded but I do find that at least one of the three young men was in possession of cartridges for this gun. The prisoner directed the manager to kneel on the floor and he was then handcuffed with a pair of handcuffs that the prisoner had bought some weeks earlier. Shortly after, the handcuffs were removed and the prisoner directed the manager to open the safe. The contents, approximately $3,000, were taken. The manager was then tied up with electrical cord and rope, brought by the offenders for this purpose. The manager was directed to lie down on his stomach. Just before the three left, the prisoner said to the manager, "don't look up, we are going to take our balaclavas off and if you see our faces we'll kill you".

1. Using the manager's keys, the three young men took his car parked outside the premises and escaped. The prisoner got a third of the proceeds of the robbery and spent it on clothes, jewellery and the like. The clothes and shotgun were dumped. I am satisfied that the prisoner's role in the planning and execution of the armed robbery was at least equal to that of the co–offenders.

The Island State Credit Union

1. The armed hold up of the Island State Credit Union took place on the afternoon of 5 September 1990. It was committed by the prisoner in company with a 15 year old. It was the product of a carefully laid plan. A few days earlier, the prisoner and one of the co–offenders involved in the Pizza Hut robbery wrote out a plan for the hold up. The next day, the 15 year old came on the scene and an amended plan was drawn up. Originally, the plan was that a car would be bought and used to make good the escape from the premises but this proved impossible and in result, the co–offender who was involved in the Pizza Hut robbery did not play an active part in the robbery of the credit union.

1. The prisoner, who is experienced in the use of firearms, took a .22 rifle and some hollow nosed bullets from a friend's house. He loaded the rifle and its magazine with these bullets. Hiding the rifle in a bag, the prisoner and the 15 year old went to the premises of the credit union in the early afternoon. They pulled stockings over their faces and entered the premises. Following the pre–arranged plan, the prisoner threatened the three staff present with the rifle and demanded that money be put in a bag which had been brought for the purpose. Systematically, the prisoner and his co–offender forced the staff to take the money from the drawers and place it in the bag. One of the employees was then forced to open the safe and that was emptied. No customers were present. The three staff were then forced at gun point to assemble in the foyer. At that stage, another employee returned from lunch and she too was made to join the others in the foyer. Whilst they were standing there the prisoner moved in front of them and raised the rifle to his shoulder, pointing it directly at one of the employees. Looking at her down the barrel, he said, "what do we do with them now?" He then turned away and left with the co–offender. Approximately $27,000 was stolen. All but some four or five thousand dollars was recovered. Throughout the robbery all employees were understandably in terror that they would be killed.

1. I find that both armed hold ups were committed in accordance with careful and deliberate plans laid some days earlier. Throughout their commission the prisoner demonstrated steadiness of thought and deed. He was not affected by the consumption of liquor or drugs. Although only 16 years old, the prisoner exhibited a capacity for serious criminal activity usually found only in much older and more experienced persons. By his unlawful acts the prisoner not only terrified innocent persons but exposed them to a very real risk of serious injury or death. Asked by me for his reason for committing these serious crimes the prisoner said on oath that he got the idea from watching a television report of another armed hold up at the Northgate shopping centre. However, when confronted with publicity concerning this latter crime which demonstrated that it had taken place after the prisoner had committed the robbery at the Pizza Hut, he admitted that his proffered explanation had been a lie. Although the prisoner also claimed that the crimes had been committed out of financial need his cross–examination failed to demonstrate the existence of any such need.

The Circumstances of the Offender

1. The prisoner is the eldest of two children. His parents separated when he was two years old. He has had no contact with his father since. His mother remarried in the 1980s but this marriage came to an end in 1989. It was claimed that the breakdown was due to excessive consumption of alcohol and aggressive behaviour by the prisoner's stepfather.

1. After a period of time in Western Australia and Launceston the prisoner and his family came to live at Goodwood. The prisoner attended the Claremont High School for two years. He was described as an under achiever with the potential for achieving level II passes or credits. His period at this school was marked by disruptive behaviour. At the beginning of 1990 he enrolled at the Claremont Education Park. There, he initially demonstrated a good attitude and attendance record. In the middle of 1990, the prisoner's mother left home. The prisoner remained behind with his stepfather and sister. Shortly after, the stepfather and sister also left home. The prisoner remained there living by himself. He gave up his studies at Claremont Park and spent his days in idleness, often in the company of his co–offenders. Apart from a conviction in the Children's Court in 1989 for burglary, the prisoner is without prior criminal conviction.

1. Although the prisoner's background cannot be described as stable he is physically and mentally able and, by part time work during his early childhood, demonstrated a capacity for lawful industry. There is nothing in the prisoner's circumstances, other than his youth, to warrant him being treated as a person of diminished responsibility.

Principles

1. Curial sanction for criminal activity is directed towards the satisfaction of several diverse objectives. Deterrence of the individual offender, deterrence of those who might be minded to commit similar crimes, retribution or denunciation of criminal conduct, the safety and security of the public and the reformation of the offender, are some of those objectives. It is readily apparent from the foregoing that no sanction can simultaneously satisfy all those objectives. The sentencing process is an exercise of judicial discretion which weighs the strength of the claim of each of those objectives in the light of the circumstances surrounding the commission of the crime and the personal circumstances of the offender. The result of that process is the imposition of a sanction which is in conformity with other sanctions imposed in similar circumstances and which strikes an appropriate balance between the competing objectives.

1. In the present case the need to rehabilitate the offender is starkly at odds with the need to deter him and others and the need to mark condemnation of the criminal conduct. Regrettably, it is accepted that the imposition of a gaol sentence on a young offender is likely to expose him to the teaching of recidivists and turn him into a confirmed criminal on release. The Courts have always recognised that, generally speaking, the youthfulness of an offender is always a ground for extending leniency. See R v Piercey [1971] VR 647; Principles of Sentencing, D A Thomas (2nd edn) 195 et seq In Ling v Suckling 141973 Nettlefold J cited with approval the following statement from the Court of Criminal Appeal in England in R v Smith [1964] Crim LR 70:

"In the case of a young offender there can hardly ever be any conflict between the public interest and that of the offender. The public have no greater interest than that he should become a good citizen. The difficult task of the court is to determine what treatment gives the best chance of realising that object. That realisation is the first and by far the most important consideration."

1. This proposition is reflected in the provisions of the Child Welfare Act 1960, s4 of which provides, with respect to the exercise of jurisdiction by a Children's Court, that each child shall be treated not as a criminal, "but as a child who is, or may have been, misdirected or misguided". It is to be noted that, but for the fact that the prisoner was jointly charged with an adult with respect to the Pizza Hut robbery, he would have been dealt with under the provisions of that Act. Section 21(1A) provides that with respect to a child who has attained the age of 16 the Children's Court shall not impose any term of imprisonment or terms of imprisonment that in the aggregate exceed a period of two years.

1. The provisions of that Act have no application to the imposition of sentence on the prisoner but they were referred to by Chambers J in Bruce and Curtis v The Queen [1971] Tas SR 22 at pp55, 56:

"This section [s.4] cannot apply to the applicant, Curtis, in the present case because the learned trial judge in passing sentence upon him was not exercising the powers or authorities conferred by the Child Welfare Act 1960, but I think nevertheless that a little of the spirit of this section might be imported into a consideration of his case. To show mercy is not always to show weakness. It is, of course, impossible to treat him simply as a misguided child and I have already said that a prison sentence was inevitable, or, if you like, 'expedient' in the terms of s4."

1. These considerations must be weighed with the other objectives of curial sanction and account taken of the seriousness of the crime or crimes committed. It was not submitted that the armed holdups were anything other than very serious matters. The Director of Public Prosecutions informed the Court that, since 1 July 1990, there have been 17 incidents of robbery with the use of weapons, primarily firearms, and that these crimes were two such incidents. Particulars of convictions for robbery involving violence since 1 July 1986 were handed up. They demonstrated that 81 persons were convicted of offences involving robbery and violence or a similar alternative offence. Of those persons, 45 were aged 19 years or younger and 18 aged between 19 and 25. Thus, it was submitted that on the issue of general deterrence the Court should bear in mind that those requiring deterrence were likely to be in the younger age group.

1. There has in recent times, quite properly, been not inconsiderable public disquiet about the incidence of robberies involving violence and, inferentially, society expects the Courts to hand down sentences which will mark denunciation of this kind of criminal activity. It is appropriate that Courts should take into account public feeling. However, the public feeling to which the Court should rightfully pay heed is informed public feeling and not that generated by media publicity promulgated in ignorance of all the relevant circumstances of each individual case.

1. In George v The Queen [1986] Tas R 49 (a case of rape by a young offender), Cox J said at p62:

"The rape of a child of four years is undoubtedly a very serious crime which naturally excites a sense of public outrage which it is proper for the court to take into account (see Bowden v The Queen [1968] Tas SR (NC) 15 and Austin v The Queen [1971] Tas SR 227), though not to the exclusion of all other factors for as Green J said in Hancocks v The Queen 4680 'the public feeling which is to be reflected in a sentence is informed public feeling' capable of differentiating between the turpitude for this kind of conduct by a mature, intelligent recidivist for example and an immature adolescent with no previous behavioural transgressions."

1. I would also add that it is the duty of the Court in its constant endeavour to do justice to the individual offender to put aside any transitory clamour by the public to "make an example" of any one convicted person.

The Sentence

1. From all the material before me I reach the conclusion that the prisoner's age does not reflect the level of his maturity. The calculation and calm with which the armed holdups were planned and carried out, their material motivation and the prisoner's evident absence of remorse, show him to be a person of considerable maturity and not without intelligence. There is no reason to suppose that the prisoner would not have used violence had his aims been thwarted. There is a need for the Court to make it quite clear to the prisoner and others, including the young, who may be tempted to commit serious crimes such as these, that such conduct usually will be visited with immediate imprisonment notwithstanding those factors which usually mitigate against the imposition of such a sentence, on youthful offenders.

1. On the other hand, the fact remains that the prisoner is very young and any sentence must not be so crushing that it quells any desire in him to reform, for rehabilitation still remains the primary goal in the case of youthful offenders. The prisoner has been in the custody of the Director of Child Welfare since his arrest on 6 September 1990 and has spent that time at Ashley Home. In a recent report furnished to the Court a child welfare officer advised that the prisoner absconded from the Home during the period of remand. He was at large for three days and then telephoned the Home to ask to be collected. The opinion is that the escape was an unpremeditated act committed in the company of others. The assessment of the staff at the Home is that the prisoner's behaviour has generally been exemplary apart from some failures to comply with the rules and entrenched verbal aggression.

1. It is the belief of the manager and staff of Ashley Home that, given the will, the prisoner has the capacity to modify his behaviour to a socially acceptable level. Plans to achieve this result and to further the prisoner's education are in hand. Thus it seems that with the prisoner's co–operation his reformation is a realisable goal.

1. The Child Welfare Act, s28(1) empowers this Court upon conviction of a child, viz. a person who has not attained the age of 17 years, to (inter alia) declare him or her to be a ward of the State. I take the view that the prisoner was convicted within the meaning of this section when he entered his pleas of guilty. He had then not attained the age of 17 years. The expression "conviction" can refer to the final disposal of a case or a finding of guilt depending upon the statutory context. See s v The Recorder of Manchester [1971] A.C. 481 at p489; R v Drew [1985] 2 All E.R. 1061.

1. The reference to conviction in s28(1) is clearly a reference to a determination of guilt for the section confers powers exercisable in addition to or in lieu of any other powers. By virtue of subs.(1A) the exercise of a power conferred by subs.(1) is "deemed to be a sentence".

1. I hold that it is open to the Court to exercise the power conferred by s28. For a discussion on this question see Barrenger v Standaloft [1966] Tas R 65 at pp69–71. If an order is made declaring the prisoner to be a ward of the State he will remain in the custody of the Director of Child Welfare until he reaches 18 or the Minister earlier declares that he is no longer a ward of the State. I understand from submissions made by Mr. Proctor that the likelihood is that any sentence of imprisonment will be served during the period of wardship at an institution other than an adult prison. The report of the Child Welfare officer recommends against the declaration of wardship but clearly expresses the view that any period in custody should be served in Ashley Home. The report states that this can be achieved by administrative action even in the absence of a declaration of wardship. Without the benefit of argument or submission in Court it is not clear to me how this can be done so I propose to order a declaration of wardship. At any time hereafter, should it be deemed appropriate, the Minister, on the advice of the Director, can declare a cessation of such wardship.

1. I am firmly of the view that an immediate custodial order is appropriate having regard to the gravity of the crimes, the need to deter the prisoner and others from committing similar crimes and to mark society's denunciation of the prisoner's conduct. The length of the sentence reflects these matters. However, in view of the prisoner's extreme youth and the compelling need to foster and encourage a genuine desire in him to reform, the period during which he is exposed to older and more experienced criminals should be reduced to a minimum. To further this aim execution of half the sentence should be conditionally suspended for a substantial period and during that time the prisoner given the guidance and assistance of a probation officer.

1. With respect to the two counts of aggravated armed robbery, the two counts of burglary and the two counts of stealing the order of the Court is six years' imprisonment to date from 6 September 1990. I direct that the execution of the last three years of that sentence be suspended upon condition that the prisoner commit no offences involving violence or dishonesty for a period of 3 years from the date of his release from custody. It is also ordered that a probation order is made for the same period of three years and that during the period of the order the prisoner submit to the supervision of a probation officer. It is also ordered that the prisoner be declared a ward of the State. On the conviction for motor vehicle stealing a conviction is recorded on the basis that the penalty for the commission of this offence is subsumed in the penalty imposed on the other matters.

1. With respect to the civil parties, Island State Credit Union and the Attorney–General (Education Department), it is adjudged that each recover from the prisoner damages and costs in accordance with the Code, s425A and it is ordered that the damages be assessed under the provisions of the Supreme Court Civil Procedure Act.

1. With respect to the armed robbery of the Pizza Hut I have no material to identify the proper name of the civil party entitled to recover damages and accordingly am unable to order any civil judgment. This claim will be adjourned to a date to be fixed.