Streets v Tasmania
[2016] TASCCA 13
•20 September 2016
[2016] TASCCA 13
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Streets v Tasmania [2016] TASCCA 13
PARTIES: STREETS, Timothy Robin
STREETS, Justin Michael
v
STATE OF TASMANIA
FILE NOS: 2206/2015
2208/2015
DELIVERED ON: 20 September 2016
DELIVERED AT: Hobart
HEARING DATE: 26 August 2016
JUDGMENT OF: Tennent, Wood and Pearce JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Appellants alleging sentence manifestly excessive – Pleaded guilty to two counts of aggravated armed robbery – Two robberies of same pharmacy using knife – Sentence of 5 years' imprisonment with parole eligibility after half not manifestly excessive.
Criminal Code (Tas), s 402(4).
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
First Appellant: A Hensley
Second Appellant: A Hensley
Respondent: J Dennison
Solicitors:
First Appellant: Legal Aid Commission of Tasmania
Second Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2016] TASCCA 13
Number of paragraphs: 28
Serial No 13/2016
File Nos 2206/2015
2208/2015
TIMOTHY ROBIN STREETS v STATE OF TASMANIA
JUSTIN MICHAEL STREETS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
WOOD J
PEARCE J
20 September 2016
Order of the Court (26 August 2016)
Appeals allowed.
Sentences imposed by sentencing judge unaltered except to commence on 3 August 2015 instead of 4 August 2015.
Serial No 13/2016
File Nos 2206/2015
2208/2015
TIMOTHY ROBIN STREETS v STATE OF TASMANIA
JUSTIN MICHAEL STREETS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
20 September 2016
I have had the benefit of reading in draft form the reasons of Pearce J for the manner in which this appeal has been disposed of. I agree with those reasons.
File Nos 2206/2015
2208/2015
TIMOTHY ROBIN STREETS v STATE OF TASMANIA
JUSTIN MICHAEL STREETS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
20 September 2016
I agree with the reasons for judgment of Pearce J. They accurately reflect my reasons for concluding that the sentences were not manifestly excessive and that the appeal in each case should succeed only to the limited extent regarding the commencement date of the term of imprisonment.
File Nos 2206/2015
2208/2015
TIMOTHY ROBIN STREETS v STATE OF TASMANIA
JUSTIN MICHAEL STREETS v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
20 September 2016
Timothy Streets and Justin Streets were jointly charged with two counts of aggravated armed robbery. They pleaded guilty. On 29 October 2015, Estcourt J sentenced them both to imprisonment for five years. His Honour ordered that the sentence commence on 4 August 2015 and that they not be eligible for parole until having served half of the sentence. This appeal challenges the sentence on the ground that, in each case, it is manifestly excessive. At the conclusion of the hearing the Court announced that it was not satisfied that the ground was made out.
During the hearing of the appeal leave was granted to add a further ground of appeal asserting that his Honour should have ordered that the sentences of imprisonment commence one day earlier, on 3 August 2015. The appellants were arrested on, and had been in custody since, that day. His Honour was required to take that period of custody into account, Sentencing Act 1997, s 16, but was given the wrong date. Counsel for the State agreed that the original order was out by one day and should be corrected. For that reason the Court ordered that the appeal be allowed, but only to make that limited amendment to the sentencing order. The order was not otherwise altered. These are my reasons for concluding that the sentence his Honour imposed was not manifestly excessive.
The circumstances of the crimes
At about 2.15pm on Thursday, 9 July 2015, Timothy Streets walked into a pharmacy in central Burnie. He was wearing a balaclava. Only his eyes were visible. He was carrying an old rusty knife. There were no customers inside but a female pharmacist was seated near the dispensary, and at least two pharmacy assistants were also present. Mr Streets walked towards the pharmacist with the knife and said "Where's your fucking Oxycontin". He walked around the counter and stood behind and over the pharmacist with the knife as she unlocked the drug safe. Mr Streets then reached in and removed packages containing a total of 400 Endone tablets and four boxes containing a total of 112 Oxycontin tablets. He left by walking back out the door. While the robbery was taking place Justin Streets stood at the door of the pharmacy as lookout. He was not wearing a disguise. The two men left together.
A little over three weeks later, at about 9.15am on Monday, 3 August 2015, the two men robbed the same pharmacy again. This time they were with a third man, their cousin, who was first sent into the pharmacy to make sure that there were no customers inside. Once given the all clear, Timothy Streets entered wearing a balaclava and gloves and holding a knife which was about 12 centimetres long. A different pharmacist, this time a male, was behind the counter. At least one pharmacy assistant was also present. Timothy Streets approached the pharmacist quickly, pointing the knife and demanding Oxycontin. Mr Streets went around the counter and directed the pharmacist towards the drug safe by pushing the tip of the knife blade against his kidney area. The pharmacist was not injured but felt the knife make contact with him. Once the safe was opened Timothy Streets removed 13 boxes of Endone and 10 boxes of Oxynorm, a narcotic analgesic, and left. Once again, Justin Streets stood at the door during the robbery as lookout.
The two men were quickly identified and arrested at their house during the morning of the second robbery. When interviewed they both admitted having been responsible for the robberies.
The circumstances of the appellants
The appellants are brothers. When the crimes were committed Timothy Streets was aged 27 and Justin Streets was aged 25. Timothy Streets is of very low intelligence. He has limited education and is illiterate. He received a disability support pension for what his counsel described as a mild intellectual disability. He had demonstrated some capacity to hold some employment as a labourer. Justin Streets also had limited education, having been expelled from school in Grade 8 for behavioural issues associated with attention deficit disorder. Like his brother he had held various menial employment positions from time to time. It was submitted that he had a suspected acquired brain injury from a farm accident some years earlier, but no formal diagnosis had been made and no medical evidence of the nature and extent of any such injury was produced.
Timothy Streets had no relevant prior convictions. Justin Streets had some old convictions for dishonesty, but their relevance was much reduced by the lapse of time. Both men had a long-standing addiction to illicit drugs. The sentencing judge was informed that they were introduced to drugs by the same man, starting with cannabis and progressing to other drugs, eventually methylamphetamine. When the men were arrested at their home, the police found the remains of packets of the drugs stolen in both robberies and evidence suggesting that some had been used. Both men were under the influence of methylamphetamine at the time the robberies were committed, and consequently had little detailed recollection of what they had done. Timothy Streets told the police during his interview that the robberies were committed to help pay off a drug debt that had led to threats to his parents, but agreed he had used some of the stolen drugs by injecting them. Justin Streets gave a similar story. He said that the man who introduced him to drugs had threatened to burn down his parents' house unless a drug debt was paid, and after the robberies they gave some of the drugs to another person but kept some for themselves. Before the sentencing judge, although reference was made to the statements the appellants had made to the police, no form of threat or compulsion was asserted by their counsel.
Both men claimed in mitigation that, as a result of the period of enforced abstinence and sobriety while in custody, they realised the consequences of abuse of drugs and had resolved to do everything they could to remain drug free after their release.
The comments on passing sentence
In passing sentence the learned sentencing judge said:
"In sentencing Mr Braslin and Mr Cowen (Braslin and Cowen v Tasmania [2010] TASCCA 1), Justice Porter considered the prevalence of robbery and aggravated robbery, and the range of sentences imposed since 2000, being after Professor Warner published the second edition of her text Sentencing in Tasmania. His Honour said for aggravated armed robbery and armed robbery, there are 16 sentences of the 23 in 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. His Honour said an analysis of sentences imposed for robberies of business premises involving firearms, and offenders with relevant prior convictions, reveals that sentences at the upper end of the range are common. The objective seriousness of a robbery, his Honour said, will be affected by whether a weapon is used, the nature of the weapon and the manner in which it is used, and I take those matters into account. Notwithstanding that the robbery of a pharmacy when armed with a knife in pursuit of drugs of addiction are grave crimes, clearly sentences at the upper end of the range as described by Justice Porter are not called for in this case. There are however no significant mitigating factors beyond the early pleas of guilty and the co-operation of both defendants with police – for which I give both defendants full credit and a discount on a sentence that would otherwise have been imposed by me. I also take into account the totality principle, given that each man is being sentenced for two crimes. I see no reason to differentiate between the total criminality of each of the defendants – they were in this together, in close proximity to each other, and in a quest for drugs for their own use, and perhaps for the payment of a drug debt."
Sentencing for aggravated armed robbery
This Court has repeatedly emphasised the seriousness of the crime of aggravated armed robbery: R v McFarlane [1993] TASSC 161, 2 Tas R 201 per Crawford J (as he then was) at 210 and Zeeman J at 221; Walsh v The Queen [1996] TASSC 59, 6 Tas R 70 per Wright J at 86. It calls for a sentence of deterrence, both general and personal, and denunciation: McFarlane per Cox J (as he then was) at 205. Courts must make clear to those who may be minded to commit such crimes that they will be visited with immediate and substantial terms of imprisonment: R v Everett and Phillips [1994] TASSC 39, 72 A Crim R 422 at 427 per Zeeman J at 441.
Sentences for armed robbery and aggravated armed robbery have been the subject of a number of recent appeals to this Court: Braslin and Cowen v Tasmania [2010] TASCCA 1; Crosswell v Tasmania [2012] 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. In Braslin and Cowen, a case referred to by the sentencing judge, Porter J reviewed the range of sentences for aggravated armed robbery and armed robbery in the last decade or so prior to that decision. Porter J said, at [26]:
"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."
Porter J's review in Braslin and Cowen was referred to by Evans J in the following passage from his judgment in Burns at [56]–[57]:
"Sentencing ranges for the crime of aggravated armed robbery in this jurisdiction are detailed in Prof Kate Warner's text, Sentencing in Tasmania, 2nd ed. Table 22 at 332 shows that for the period 1990 – 2000 for a single count of aggravated armed robbery the median sentence was 18 months' imprisonment. Table 24 at 335 deals with multiple counts of the same crime for the same period. It shows that the median sentence for two counts was two years and nine months, and this increased to three years for all sentences in relation to two or more counts.
In Braslin and Cowen v Tasmania [2010] TASCCA 1, Porter J at [26] refers to his assessment of the sentences imposed in this jurisdiction for aggravated armed robbery and armed robbery since the abovementioned period. His Honour said of his analysis that the outcome was somewhat inconclusive, but might suggest that a more punitive approach to this type of crime had been taken in the most recent decade, compared to the decade that preceded it. In the same decision at [21], his Honour said of statistics with regard to sentences for the two crimes mentioned, that whilst showing nothing dramatic, they bear out an increase of some reasonable proportion in the number of cases of aggravated armed robbery and armed robbery coming before the Court."
Application of principle to this case
It was not suggested that there was any need arising from parity to distinguish between the appellants in sentencing. Although Justin Streets was not holding the knife and was not wearing the balaclava, and acted only as lookout, he was a knowing participant in both crimes. The absence of prior convictions, or at least recent prior convictions, was a relevant sentencing consideration. Mitigation arose from the pleas of guilty. No doubt the case against both appellants was strong, but the pleas avoided the expense and inconvenience of a trial and the necessity for the victims of the crime to give evidence: Harris per Estcourt J at [40]–[41]. Given the serious psychological impact on the victims to which I will refer shortly, that second factor assumed some weight. The plea of guilty was not indicative of genuine remorse, any claim to which was all but removed by the commission of the second robbery. Although neither was a youthful offender, the absence of prior convictions meant that their potential rehabilitation remained a relevant sentencing consideration, particularly if addiction could be overcome.
The sentencing judge referred to the absence of significant mitigating factors beyond the pleas of guilty and admissions to the police. His Honour was correct to conclude, as he must therefore have done, that no significant mitigation arose from the claims to intellectual impairment. Impaired mental function is relevant to the sentencing process in the ways explained by this Court in Director of Public Prosecutions (Acting) v CBF [2016] TASCCA 1 at [36]-[39]. The Court applied the principles restated by Maxwell P, Buchanan and Vincent JJA in R v Verdins [2007] VSCA 102, 16 VR 269 at 276, adopted in Startup v Tasmania [2010] TASCCA 5. Applying those principles to this case, there was no material before the sentencing judge, apart from a bare assertion in vague and general terms of the existence of some impairment, to establish the extent of any mental impairment or a connection between the impairment and either appellant's moral culpability or the need for general and specific deterrence. There was nothing to establish that an impairment had some "realistic connection" with the offending, or "caused or contributed" to the offending, or was "causally linked" to the offending. Nor was there material from which it could be concluded that a mental impairment affected the ability of the appellants to appreciate the wrongfulness of their conduct, or obscured their intent to commit the offence, or impaired their ability to make calm and rational choices or to think clearly at the time of the offence. These crimes required forethought, planning and reasoning. A disguise, gloves and knives for Timothy Streets were organised. A lookout was employed. On the second occasion, another man was used to check the premises. The measures distinguish this case from those in which the offending itself is sufficient to demonstrate a deficit in reasoning and causal connection between an intellectual disability and the criminal conduct.
Despite the factors to which I have referred, I concluded that for a grave crime such as aggravated armed robbery, those considerations were outweighed by the need for general deterrence and retribution: Braslin and Cowen per Porter J at [28]–[30]. The need for general deterrence is emphasised when the crime is committed by a person or persons under the influence of, or motivated by, the wish to obtain illicit drugs. The appellants' addiction was not a mitigating factor and did not displace deterrence, particularly of other actual and potential drug users, as the principal sentencing consideration: R v Valenti (1989) 46 A Crim R 23 at 25; R v Henry [1999] NSWCCA 111, 46 NSWLR 346 per Spigelman CJ at [206] and following, and Wood J at [215] and following. The prevalence of the crime is a factor repeatedly referred to in many authorities since McFarlane, most recently by Porter J in Braslin and Cowen at [19]–[26], and then by Wood J in Harris at [19]. The vulnerability of certain types of commercial premises to robbery of this type is a factor relevant to general deterrence; per Wood J in Harris at [22]. Such premises include takeaway food shops and service stations, particularly those open at night and in more remote locations. In cases motivated by a wish to obtain drugs, pharmacies are especially vulnerable. The employees of such businesses are entitled to the protection of the law by the imposition of deterrent sentences.
Another factor is the potential effect on victims. The impact of the crime on the victim is a relevant consideration for sentencing purposes: Belbin v Bennett [2011] TASSC 23, per Crawford CJ. At [29]–[30] of that case, his Honour continued:
"I need not explain the matter further other than by quoting two passages (footnotes included in the text) from Professor Warner's Sentencing in Tasmania, 2nd ed, which was published prior to the enactment of s81A. At par3.421 the author said:
'The effect of the crime on the victim is clearly important as one of the consequences of the offence (see above at para 3.406) and a penalty will be increased if there is evidence of physical (for example, Tracey Serial No 38/1987) or psychological harm. (McFarlane [1993] TASSC 161, 2 Tas R 201, Cox J at 203, Zeeman J at 221 (armed robbery causing teller stress and contributing to miscarriage); Roughley v Rigall Serial No A47/1996 (assault of a police officer with a firearm))'."
In R v McFarlane, Cox J pointed out at 204 that, "An offender cannot know the physical and emotional make-up of his victims nor can he predict what effect the shock of his commission of the crime in their presence might have on them". Persons confronted by a weapon, such as a firearm or knife, used to facilitate the crime and prevent resistance, are very likely to be terrified and traumatised. Anyone involved in the commission or planning of such a robbery must realise the risk it entails. The wearing of a balaclava, whilst designed also to conceal identity, is an additional aggravating factor because it adds to the fear of a victim: Harris per Blow CJ at [3]. In this case, the victim impact statements given to the sentencing judge indicate that both the female pharmacy assistants suffered serious and ongoing psychological trauma and emotional harm. The crimes had a real impact on their health, their personal, family and social lives and their ability to undertake employment. One was so affected that she was unable to continue with her employment. The ability of the other to continue in her employment was in question. The male pharmacist, who was the proprietor of the pharmacy, also suffered psychological impact. He experiences anxiety and unease, especially while on duty in the pharmacy. He became very concerned about the impact on his employees and was put to considerable expense for security at the premises. Although there was no material about impact upon the other pharmacist, it is inevitable that threats of the nature she faced are frightening and traumatic and the potential for long-term psychological harm is obvious.
The degree of premeditation and planning is a relevant consideration: McFarlane per Cox J at 203. A high degree of planning suggests a considered decision to engage in criminal conduct. It is to be contrasted with an act that is spontaneous, impulsive and ill-conceived. Both of these crimes were planned, although the level of planning was rudimentary. The appellants formed an intention to commit the robberies some time before the crime and went to the pharmacy to achieve that purpose. The second robbery was planned at least from the night before its commission. In each case Timothy Streets wore a balaclava and took a knife. For both robberies Justin Streets acted as lookout. The second robbery is thus particularly serious. It was planned and executed in the knowledge that the premises were vulnerable to robbery and that the persons exposed to trauma in the first robbery may again be exposed.
Counsel for the appellants placed some emphasis on the distinction between crimes committed with knives and crimes committed with firearms. It is correct that crimes involving use of firearms are regarded as particularly serious: R v Readman (1990) 47 A Crim R 181 at 185; Director of Public Prosecutions v Harris per Wood J at [20]. However that does not mean that every case involving a firearm should attract a higher sentence than a crime involving use of a knife. The objective gravity of each crime is to be considered by the sentencing judge according to its circumstances. The risk posed by resort to knives was referred to by Evans J in DPP v Burns [2012] TASCCA 11, where his Honour pointed out that the inability to predict how those who witness an offence will react, is a relevant consideration. The risk posed by use of a knife is exacerbated when the offender is affected by illicit substances. In the commission of both of these crimes the knife was used in a most threatening way. In the second crime the point of the knife was pressed into the body of the pharmacist, thus posing an immediate and direct threat, and creating the apprehension and risk of injury or death.
Counsel for the appellants referred, by way of comparison, to a relatively small number of sentences previously imposed in cases involving pleas of guilty to two counts of armed robbery, three of which involved use of a knife and two of which involved use of a replica firearm. Little is to be gained from such a comparison. Reasonable consistency in sentencing is a requirement of justice: Wong v The Queen [2001] HCA 64, 207 CLR 584 per Gleeson CJ at 591 [7]. However, as was stated by the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) in Markarian v The Queen [2005] HCA 25, 228 CLR 357 at 371 [27], there is "no single correct sentence", and judges at first instance "are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies". Consistency is not demonstrated by, and does not require "numerical equivalence", but rather, consistency in the application of the relevant legal principles: Hili v The Queen [2010] HCA 45, 242 CLR 520 at 535 [48] and 535-536 [49]. As was recently explained by Wood J in Connelly v Tasmania [2015] TASCCA 15 at [5]:
"By considering the circumstances that have given rise to the sentence, unifying principles may be discerned. Previous sentences encapsulate the 'accumulated wisdom and experience of first instance judges and appellate courts': Hili at [48]-[54], quoting Simpson J in DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [303]. Sometimes a history of sentences can establish a range of sentences. Even if there is an established range, that history does not mean that the range is the correct range, or that the upper or lower limits are the correct upper and lower limits: see Hili at [48]-[54], again quoting Simpson J in DPP (Cth) v De La Rosa at [303]-[304]."
The principles to be applied were relevantly restated by the High Court in Munda v Western Australia [2013] HCA 38, 249 CLR 600 at 615 [39], a case dealing with an asserted manifest inadequacy of sentence:
"It was acknowledged that such a disparity is one pointer towards inadequacy; but French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ expressly approved the statement of Simpson J in Director of Public Prosecutions (Cth) v De La Rosa that previous sentences may be used to establish a range of sentences that have been imposed but not that the range is correct. In particular, the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'."
In Harris, Wood J, at [15]–[18], explained why caution is to be exercised in regarding past sentences in Tasmania for armed robbery and aggravated armed robbery as giving rise to a range or tariff. I respectfully agree with and adopt the following statement from the reasons of Brett J in Daley v Tasmania [2016] TASCCA 10 at [42]:
"… apart from crimes in respect of which a sentencing range can appropriately be established, an appeal court will have regard to comparable decisions for the purpose of identifying 'unifying principles'. However, there is little to be gained by embarking on what is in reality a misconceived quasi-mathematical exercise of comparing individual sentences, adjusting for aggravating or mitigating factors which may or may not appear in the sentences under comparison, weighting same and then arriving at a position that a sentence was too high or too low by reference to such comparison. Such a process cannot possibly account for the variation in the multiple individual factors and their relative significance that appear in each case, or the need and reality of an individualised approach by the sentencing judge. Ultimately, sentencing is an intuitive process in which the discretion is exercised within wide parameters, proportionate to the circumstances of the offence and the offender in the particular circumstances of the case."
The issue of totality was referred to by the appellants. However, the sentence is not a crushing one. Nor, in my view, did the single sentence for both crimes go beyond a just and appropriate measure of the overall criminal culpability of the appellants: Postiglione v The Queen [1997] HCA 26, 189 CLR 295 at 307–308; Director of Public Prosecutions v Farmer [2005] TASSC 15, 13 Tas R 418; Rae v State of Tasmania [2010] TASCCA 8.
Sentences not manifestly excessive
To succeed in an appeal on this ground, the appellant must demonstrate the sentencing order is unreasonable or plainly unjust; so manifestly wrong that it could only be the result of some undefinable error in the exercise of the discretion: R v Dinsdale [2000] HCA 54, 202 CLR 321 at 325; Markarian v The Queen (above) at [25]; Hili v The Queen (above) at [58]. Intervention of this Court is not justified unless "having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle": R v Pham [2015] HCA 39, 325 ALR 400 per French CJ, Keane and Nettle JJ at 406 [28]. The law gives sentencing judges a wide discretion to determine the appropriate sentence for the offender and the offence. Appellate intervention is not justified merely because the appellate court would have exercised the sentencing discretion differently than the sentencing judge: see Lowndes v The Queen [1999] HCA 29, 195 CLR 665 at [15]; Wong v The Queen (above) at [77].
The application of these well settled principles compelled me to the conclusion that the sentence of five years' imprisonment with a non-parole period of half of the sentence imposed by the learned sentencing judge was not manifestly excessive. It was not unreasonable and plainly unjust. It was within the proper exercise of the wide discretion vested in the sentencing judge. No error is revealed. The sentence did not go beyond a just and appropriate measure of the total criminality involved. The crimes called for a sentence with particular regard to general deterrence and denunciation. The appellants committed two planned robberies of the same vulnerable commercial premises. On both occasions one offender was disguised and used a knife in a menacing way as a direct and immediate threat to prevent resistance. The crimes had a serious and ongoing impact on victims. A sentence was required which made clear to others, particularly those affected or motivated by abuse of illicit drugs, the consequences to be expected from such conduct.
For those reasons I joined in the orders allowing the appeal, but only to adjust the date of commencement of the term of imprisonment by one day.
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