Sullivan v Tasmania

[2015] TASCCA 18

[2015] TASCCA 18

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

CITATION:              Sullivan v Tasmania [2015] TASCCA 18

PARTIES:  SULLIVAN, Gary Scott
  v
  STATE OF TASMANIA

FILE NO:  419/2015
DELIVERED ON:  28 August 2015
DELIVERED AT:  Hobart
HEARING DATE:  21 August 2015
JUDGMENT OF:  Blow CJ, 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 – Sentence of 5½ years' imprisonment with parole ineligibility period of 3 years – Knifepoint robbery at hotel.

Aust Dig Criminal Law [3521]

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Parity between co-offenders – Appellant sentenced to 5½ years with parole ineligibility for 3 years on one charge of aggravated armed robbery – Co-offender sentenced to 7 years 3 months with parole eligibility after 3 years 9 months on two counts of aggravated armed robbery – Whether difference in non-parole periods manifestly inadequate – Co-offender's sentence cumulative with other sentences.

Aust Dig Criminal Law [3522]

REPRESENTATION:

Counsel:
           Appellant:  In person
           Respondent:  A Shand
Solicitors:
           Appellant:  In person
           Respondent:  Acting Director of Public Prosecutions

Judgment Number:  [2015] TASCCA 18
Number of paragraphs:  14

Serial No 18/2015

File No 419/2015

GARY SCOTT SULLIVAN v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
PORTER J
PEARCE J
28 August 2015

Order of the Court

Appeal dismissed.

Serial No 18/2015

File No 419/2015

GARY SCOTT SULLIVAN v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
28 August 2015

1. I agree with Pearce J that this appeal should be dismissed.  I entirely agree with his reasons.  I would like to add some comments in relation to the question of parity in sentencing.

2. The appellant's non-parole period of 3 years represents about 54.5% of his sentence of 5½ years.  His co-offender's non-parole period of 3 years 9 months represents about 51.7% of his sentence of 7 years 3 months.  However the learned sentencing judge stated that she considered a global sentence of 7½ years' imprisonment to be appropriate for the co-offender, and that she was reducing the sentence by three months to take account of time spent by him in custody on remand.  His non-parole period of 3 years 9 months is equal to 50% of the notional appropriate sentence of 7½ years.

3. The shortest non-parole period that can be imposed in this State is half of the head sentence: Sentencing Act 1997, s 17(3). The appellant is aggrieved because his non-parole period was three years, when it could not have been any shorter than 2 years 9 months.

4. The appellant was sentenced before his co-offender. It was entirely appropriate for the learned sentencing judge, when sentencing the co-offender, to fix a non-parole period that represented a smaller percentage of the head sentence than the appellant's non-parole period did, because of two factors. First, the co-offender received a much longer sentence.  Second, that sentence was cumulative with three other prison sentences:

   · A sentence of six months' imprisonment imposed by a magistrate on 7 November 2013, commencing on that day. (If the co-offender received the maximum possible period of remission under s 71 of the Corrections Act 1997, he would still have had to serve four months of that sentence.)

   ·    Three months of a partially suspended sentence of imprisonment imposed by a magistrate on 5 April 2012.  (On that day the magistrate sentenced the co-offender to six months' imprisonment, of which three months were suspended. The suspended component of that sentence was activated by Tennent J on 20 December 2013, cumulatively with the co-offender's other sentences.)

   ·    A cumulative sentence of 15 months' imprisonment, with a non-parole period of 7 months and 2 weeks, imposed by Tennent J on an armed robbery charge on 20 December 2013. 

5. In the circumstances, it was appropriate for the non-parole period imposed on the co-offender in May 2014 to be a period that represented a smaller percentage of his head sentence than the appellant's non-parole period's 54.5%.  There was no undue disparity, and there was no legitimate basis for a sense of grievance.

File No 419/2015

GARY SCOTT SULLIVAN v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PORTER J
28 August 2015

1. I agree with Pearce J.

Serial No 18/2015

File No 419/2015

GARY SCOTT SULLIVAN v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PEARCE J
28 August 2015

1. This is a sentencing appeal. The appellant, Garry Sullivan, was found guilty by a jury of one count of aggravated armed robbery. On 5 May 2014 he was sentenced by Wood J to imprisonment for 5½ years from 15 February 2013. Her Honour ordered that the appellant not be eligible for parole until he has served three years of that sentence. The appellant is unrepresented. He prepared the notice of appeal without any legal assistance. It contains no grounds of appeal and was filed out of time. However, the affidavit filed in support of his application for an extension of time sets out his contention that the non-parole period determined by her Honour was excessive when viewed in comparison with the sentence imposed on the appellant's co-offender, Jamie Hall. 

2. At about 6.30pm on 13 February 2013, the appellant and Jamie Hall were driven by another man to the car park behind Cooley's Hotel at Moonah. The appellant and Hall 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 Hall 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 who chased them out. They were then driven away having stolen $8,760.

3. The appellant was 35 at the time of the crime and 36 when sentenced. He has spent much of his adult life in prison for crimes of dishonesty and violence. In 1995 he was imprisoned for assault. In 1996 he was given a partially suspended sentence for aggravated robbery. In 2002 he was sentenced to imprisonment for 18 months for stealing and aggravated assault. Between 2004 and 2006 he was given substantial sentences of imprisonment on three separate occasions for summary offences including aggravated burglary, burglary and stealing. In 2006 he went to New South Wales where he was fined for assault in 2006. Then in 2008 he was sentenced in that State to imprisonment for five years, with a non-parole period of three years, for robbery of a liquor shop with a knife while wearing a covering over his face. He returned to Tasmania in 2012 in breach of his parole.

4. Wood J sentenced Mr Hall not only for this crime, but also for an armed robbery of a newsagent on 21 August 2013. This Court dismissed an appeal against the sentence her Honour imposed: Hall v Tasmania [2015] TASCCA 6. As I pointed out in that appeal, 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. As to the crime for which the appellant was sentenced, it is a serious example because:

   ·    There was premeditation and planning.

   ·    Both offenders wore a disguise, which added to the terror to which the victims were exposed.

   ·    Although no firearm was involved, the crime involved considerable threatened violence. A knife was used in an aggressive and confronting way.

   ·    The crime took place when staff and customers were likely to be present, and customers were in fact present.

   ·    The crime involved vulnerable commercial premises.

   ·    The crime had a significant impact on victims. The two staff members from Cooley's Hotel 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.

5. The appellant's offending was contributed to by a long standing addiction to illicit drugs. He was using crystal methylamphetamine at the time of this crime. That was not mitigating: Director of Public Prosecutions v CSS (above) at [29]. He had participated in some rehabilitation programs in prison but there was little before the learned sentencing judge to indicate that the chances of rehabilitation were such as to outweigh the sentencing requirements of deterrence, punishment and protection of the public. The appellant was not deterred by the sentence of imprisonment imposed in New South Wales for a very similar crime. The appellant was not entitled to the mitigation a plea of guilty may have attracted. Subject to the question of parity, which I will address later in these reasons, the seriousness of this crime and the appellant's bad record lead me to conclude that there was no error in the imposition of a head sentence of imprisonment for 5½ years.

6. There remains the issue of the non-parole period. The Sentencing Act 1997, s 17(2)(b), provides that a court, when imposing a sentence, may order that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order. However, s 17(3) provides that the period specified in an order under subs (2)(b) is not to be less than one-half of the period of that sentence. As a result, the minimum non-parole period her Honour could have imposed was a period of two years and nine months. When determining the minimum time that an offender must serve, an important consideration is the protection of the community: Sentencing Act, s 3(b). The non-parole period her Honour imposed was three years, only three months above the statutory minimum. The assertion that, by so ordering, her Honour thereby made the sentence manifestly excessive has no merit. In my view, given the appellant's record and his recent breach of parole in NSW, her Honour's order was generous to him.

7. The appellant's principal contention is that the non-parole period is too long when the sentence imposed on Mr Hall is taken into account. This raises the issue of parity in sentencing. A discrepancy between sentences imposed on co-offenders will attract appellate intervention if the magnitude of the discrepancy is manifestly excessive, or gives rise to a justifiable sense of grievance and the appearance of injustice: Braslin v State of Tasmania [2008] TASSC 50 per Evans J, with whom Blow J (as he then was) and Tennent J agreed, at [8]. However Mr Hall's case involved many considerations not applicable to the appellant. Allowance is to be made for relevant differences: Postiglione v The Queen (1997) 189 CLR 295 per Dawson and Gaudron JJ at 301. Mr Hall was sentenced for two crimes for which her Honour imposed one sentence. She sentenced Mr Hall to imprisonment for seven years and three months, reducing the sentence by three months to take account of a period he had already spent in custody. The effective sentence was thus seven years and six months. She ordered that he not be eligible for parole until having served three years and nine months of the sentence she imposed. The appellant submitted that it was unjust, taking into account that Mr Hall was also sentenced for another very serious armed robbery, that his non-parole period was only nine months longer that the non-parole period ordered for the appellant. Some reference should also be made to the difference between the respective head sentences. For Mr Hall, unlike the appellant, her Honour also had to take account of other sentences to which he was already subject, each ordered to be served cumulatively, with various non-parole periods. The sentences are set out in the Chief Justice's reasons, and I need not repeat them here. One was for another similar robbery. The result is that, when sentencing Mr Hall, the sentencing judge was required to consider issues of cumulative and concurrent sentencing and totality which have no application to the appellant. The total effect of all the sentencing orders for Mr Hall was imprisonment for nine years and six months (nine years and three months from 7 November 2012) with ineligibility to apply for parole, allowing for remissions, until he has completed four years, eleven months and two weeks of his sentences. Thus, Mr Hall is subject to head sentences which are four years longer than the appellant's sentence and a non-parole period which is almost two years longer than that which applies to the appellant. In light of those factors, I am not satisfied that there is disparity in sentencing which would justify the intervention of this Court, either arising from the head sentence or because the appellant is to serve three months more than the minimum non-parole period for that sentence.

8. I would dismiss the appeal.