Crosswell, Rodney Gene v Tasmania (State of) [TASCCA]

• Jurisdiction: Tasmania
• Judge: Evans J,Blow J,Tennent J
• Judgment Date: 25 January 2012
• Docket Number: 1000/2010
• Date: 25 January 2012
• Court: Court of Criminal Appeal

[2012] TASCCA 1

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Evans, Blow and Tennent JJ

1000/2010

Crosswell, Rodney Gene

and

Tasmania (State of)

Aust Dig Criminal Law [3537]

Criminal Law — Appeal and new trial — Appeal against sentence — Other matters — Armed robbery, assaulting a police officer and other offences — Global sentence of ten years and six months' imprisonment — Whether sentence manifestly excessive.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Evans J

1 Rodney Crosswell appeals against the severity of an in globo sentence imposed on him on 16 November 2010 of ten years and six months' imprisonment, subject to him being eligible to apply for parole after serving six years and six months of the sentence. It was ordered that the sentence be cumulative upon sentences he was then serving totalling 21 months' imprisonment which had commenced on 15 May 2010.

2 His principal ground of appeal is that the sentence is manifestly excessive. Subsidiary grounds of appeal, which his counsel advanced as particulars of the principal ground, are that the learned sentencing judge erred in failing to accord sufficient weight to the appellant's plea of guilty, his genuine remorse, his intention to make monetary reparation to his victims, and the totality principle.

3 The sentence subject to appeal, was imposed by Wood J, upon the appellant's plea of guilty to the following charges in respect of conduct on or referable to 13 May 2010:

• •Count 1—assaulting a police officer. He assaulted Holly Dillon, a police officer, acting in the due execution of her duty by pointing and discharging a .410 calibre single barrel sawn-off shotgun in her direction.

• •Count 2—stealing. He stole a Commodore sedan.

• •Count 3—armed robbery. When armed with a .22LR calibre single shot sawn-off rifle, he robbed the proprietor of a newsagency of approximately $1,970.

• •Count 4—aggravated assault. In the course of the above armed robbery he unlawfully assaulted a customer of the newsagency by pushing her in the back with the rifle and pointing it at her whilst threatening her.

• •Count 5—unlawfully setting fire to property. Setting fire to the stolen Commodore sedan.

• •Count 6—perverting justice. With intent to pervert the due course of justice in relation to the crimes he had committed, he instigated a friend to provide him with a false alibi, and burnt clothes associated with his commission of the crimes.

4 On the night of 12 May 2010, police were endeavouring to apprehend the appellant for various crimes. In the early hours of 13 May 2010, police pursued the appellant, who was driving a stolen vehicle, but terminated that pursuit due to his dangerous driving. That vehicle was abandoned. Police next observed the appellant travelling in the front passenger seat of a Honda Coupe. They pursued the Honda. The appellant threw items from the Honda in order to assist the driver to evade police. At about 2.45am, the Honda was travelling north on the Brooker Highway towards its intersection with Risdon Road. Police began deploying road spikes at that intersection. Constable Holly Dillon was placing spikes in the north-bound lane as the Honda approached. That which then followed is the basis of the appellant's conviction on count 1.

Count 1—assaulting a police officer

5 In her comments on passing sentence, her Honour said the following with reference to this count:

‘Constable Dillon began to move the spikes into the north-bound lane. As she did so, you lent out of the passenger window with a sawn-off single barrelled shot gun in your hands and pointed it in her direction, shouting at her. Constable Dillon was in uniform and you knew she was a police officer. Constable Dillon did not realise that you had a firearm and she kept on laying out the spikes. You then discharged the firearm in her direction. Fortunately she was not shot. You did not intend to shoot her. Your intention was to scare her, and to get her to move further away. To use a firearm as you did for that purpose is a serious matter. There was a very real chance she could have been killed or seriously injured. You discharged the shotgun in her direction from a fast moving vehicle, and when you were within ten metres of her. Your conduct was reckless in the extreme. It is noted that you could have simply travelled on past Constable Dillon.’

6 The Honda evaded the police by swerving from the north-bound lane onto the wrong side of the Brooker Highway and travelling north in its south-bound lane. The Honda was driven to a residence in Lutana, where it was left, together with the shotgun. An occupant of that residence later hid the shotgun elsewhere. When it was found by police a fired cartridge was in the breech. It was a single barrel shotgun that was capable of being fired with one hand.

Count 2—stealing

7 Within four hours of leaving the Lutana residence the appellant stole a Commodore sedan from a street in Mornington.

Counts 3 and 4—armed robbery and aggravated assault

8 The appellant and another male travelled in the Commodore to the Claremont Newsagency with the intention of robbing it. At the newsagency the co-offender stayed in the parked Commodore. The appellant entered the newsagency armed with a bolt action single shot sawn-off rifle, wearing a balaclava or something similar, and carrying a shopping bag for the anticipated proceeds.

9 In her comments on passing sentence, her Honour described what then ensued in the following terms:

‘Inside the newsagency were the owner, Mr Datta, and a customer, Mrs Shaw. Mr Datta was behind the counter serving Mrs Shaw, who was buying a lottery ticket and a newspaper. You approached the complainants, and yelled words to the effect of, “Get behind the counter, this is a robbery. Give me the money.” You pushed the firearm into Mrs Shaw's back whilst saying, “Get around the back. I told you, get around the back.” When she was behind the counter you grabbed her arm and moved her to a position to the end of the counter area. You then pointed the firearm at Mr Datta and demanded he open the till. The till was unlocked and you began taking money from the cash drawers and putting it into the shopping bag. As you were doing so, you demanded to know where the safe was, saying you wanted the “big money”. Mr Datta told you he did not have a safe. You became angry and grabbed a till from one of the drawers and threw it to the ground. You then pointed the firearm at the face of Mrs Shaw. You were less than one metre from her. She could clearly see the barrel of the firearm. You said to both Mrs Shaw and Mr Datta, “Don't fucking mess with me, show me where the fucking safe is or I'll fucking shoot yous.” Both Mrs Shaw and Mr Datta feared for their lives. Mr Datta took you to a storeroom at the back of the shop. You forced Mrs Shaw to accompany you and continued your threats by pointing the firearm at both complainants.

As the storeroom was entered, Mr Datta tried to escape by opening a door. You tried to stop Mr Datta and, as you were getting past Mrs Shaw, you punched her to the left side of her body. You grabbed Mr Datta and said, “Get away from the fucking door.” However, Mr Datta managed to escape through the door, and Mrs Shaw followed. You ran to the waiting stolen vehicle which sped away. Mrs Shaw recorded the registration number and immediately called the police. You stole a total amount of $1,970 in notes and coins.

It is not known whether the firearm you used was loaded or not. Regardless, your victims thought it was and you behaved as if it was.’

10 Two days later the appellant was seen by police driving a motor vehicle, which he crashed and abandoned. Police found the sawn-off rifle that had been used in the armed robbery in that vehicle between the centre console and the driver's seat. There was ammunition in the rifle. It was capable of being fired with one hand.

11 The sentence of 21 months' imprisonment, to which the sentence subject to appeal was made cumulative, includes a sentence of six months' imprisonment imposed on the appellant for offences arising from his possession of that loaded firearm on 15 May.

Count 5—unlawfully setting fire to property

12 Following the armed robbery, the appellant and his co-offender travelled to Rosetta in the stolen Commodore, where it was set on fire and totally destroyed.

Count 6—perverting justice

13 The appellant purchased new clothes after the armed robbery, and the clothes worn during the robbery were burnt in the backyard of his co-offender's residence. When police first spoke to the appellant about his involvement in the armed robbery, it was by telephone. He provided them with a false alibi stating that he had been with his mate, Jye Lowry, and was still with him. Jye Lowry confirmed this and later provided police with a statutory declaration to the same effect. When the appellant was later interviewed by police, he reiterated his false alibi.

Relevant considerations

14 With regard to the victim impact statements that were provided to the Court, her Honour said:

‘The victims of your criminal conduct were subjected to a terrifying ordeal. In the case of Constable Dillon she did not realise until after you drove past that you had pointed a firearm in her direction and discharged it. The awareness of what you did, the danger she had been exposed to, and the knowledge that she could have been killed have affected her emotionally and psychologically to a substantial degree, as would be expected. She does not work shift any more. She works in an office rather than out in the field. Since the incident she has suffered nightmares, sleeplessness and anxiety. She experiences flashbacks and moments when panic overwhelms her. She has consulted a general practitioner and a psychologist to assist in managing her symptoms. When wearing her police uniform in public she feels vulnerable, like a target.

The victims of the...