DPP v Burns, Philip Thomas [TASCCA]

• Jurisdiction: Tasmania
• Judge: Evans J,Porter J,Wood J
• Judgment Date: 04 October 2012
• Docket Number: 396/2012
• Date: 04 October 2012
• Court: Court of Criminal Appeal

[2012] TASCCA 11

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Evans, Porter and Wood JJ

396/2012

Director of Public Prosecutions

and

Burns, Philip Thomas

REPRESENTATION:

Counsel:

Appellant: J Ansell

R v McFarlane (1993) 2 Tas R 201 ; Braslin and Cowen v Tasmania [2010] TASCCA 1, referred to.

Aust Dig Criminal Law [3537]

Criminal Law — Appeal and new trial — Appeal against sentence — Appeals by Crown — Other matters — Sentence of 10 months' imprisonment together with a probation order for two convictions of aggravated armed robbery and a conviction of common assault — Whether sentence manifestly inadequate.

Orders of the Court:

• 1 The appeal is allowed.

• 2 The global sentence imposed on the respondent of 10 months' imprisonment together with a probation order to operate for 12 months following his release from prison are quashed.

• 3 In lieu the respondent is sentenced to two and a half years' imprisonment to date from 18 March 2012 and it is ordered that he be eligible to apply for parole after serving one half of this sentence.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Evans J Porter J Wood J

1 Following the respondent's plea of guilty to two charges of aggravated armed robbery and a charge of common assault, Blow J sentenced him to a global sentence of 10 months' imprisonment with effect from 18 March 2012, and ordered that he be subject to a probation order to operate for 12 months following his release from prison. The Director of Public Prosecutions appeals against this sentence on the ground that it is manifestly inadequate.

2 When sentenced, the respondent was 24 years of age. He was 23 when he committed the offences.

3 The facts provided to the learned sentencing judge referrable to the respondent's criminal conduct included the following.

Common assault and aggravated armed robbery on 3 March 2012

4 At 3.35pm on Saturday 3 March 2012, the respondent and Jasmine Smith went to Woolworths Supermarket, at Glenorchy Central. When in the store they went to the meat section and placed seven packets of meat to the value of $171 into a bag. They then approached the front of the store. At this time Ms Smith was in possession of the bag containing the meat, and the respondent shielded her from an employee of the store, Jacinta Hall.

5 When Ms Hall went to follow Ms Smith, the respondent grabbed Ms Hall by the throat and arm, pulled her towards him and punched her to the chest. This conduct is the basis of his conviction for common assault.

6 The Assistant Store Manager, Darren Richards, and an employee, Matthew McHugo, approached the respondent and Ms Smith after they left the store. Thereupon the respondent pushed Mr McHugo and said ‘fuck off’. Mr Richards said to the respondent that he wanted to talk about the meat. The respondent ran at Mr Richards with both fists in the air. At this time the respondent was seen to be holding what was believed to be scissors towards Mr Richards. The respondent was, in fact, holding a paint scraper which he had stolen from the store. He had taken it from his pocket and placed it up his sleeve, so that only the tip of the scraper could be seen. He threatened Mr Richards not to come any closer or he would cut ‘them’. This conduct is the basis of his first conviction for aggravated armed robbery.

7 Ms Smith watched the incident unfold. She and the respondent left the area together.

Aggravated armed robbery on 17 March 2012

8 At approximately 5.18pm on Saturday, 17 March 2012, the respondent, Ms Smith and Todd Burns, the respondent's brother, entered Woolworths Supermarket in Sandy Bay. The respondent and Ms Smith went to the meat section of the store and Mr Todd Burns went to a separate section of the store. He apparently played no role in what then ensued.

9 The respondent and Ms Smith had a backpack in their possession. They placed a quantity of meat and gravy in the backpack. A customer notified an employee of the store, Mrigesh Khattri, of what the respondent and Ms Smith were doing. Mr Khattri went to the front counter to notify management. With the respondent carrying the backpack, he and Ms Smith attempted to walk through the store's express checkout without paying for the items in the backpack. Mr Khattri approached them. The respondent refused to stop and a struggle broke out. Mr Khattri attempted to place the respondent in a bear hug to restrain him. The backpack fell to the ground. The respondent took a knife from his trousers and held it downwards. It had a 10 to 12 cm blade. In the scuffle that then ensued Mr Khattri was stabbed two times to his upper right thigh. The respondent was wrestled to the floor. Ms Smith moved in and dragged the respondent away. He got to his feet and as he did so he waved the knife a number of times at staff.

10 Ms Smith collected the backpack and she and the respondent left the store. A member of the public used a row of trolleys to force them out of the door of the store. They left the area in a car.

Police interviews

11 On 18 March 2012, police interviewed the respondent in relation to the events of the previous day. He denied having entered the Woolworths Supermarket in Sandy Bay on the previous day and was adamant that he had been at home all the previous day. After viewing surveillance footage of what had occurred, he denied that it showed him, Ms Smith or his brother.

12 When interviewed by police on 24 March 2012 in relation to his conduct on 3 March 2012, the respondent said that on that occasion he had been alone and stoned off his head. He had stolen the meat in order to sell it and use the proceeds to purchase speed and dope.

Outstanding charges

13 His Honour was provided with the respondent's record of prior convictions, and the following table of outstanding charges to which the respondent had pleaded guilty and was due to be sentenced in the Court of Petty Sessions. (We have been told that for these offences the respondent ultimately received a sentence of six months' imprisonment, cumulative upon the sentence that is the subject of this appeal.)

Complaint	Date of Offence	Charge	Area of Offence
10360/11 (related to 1344/12)	8 th September 2011 9th September 2011	Stealing Use a computer to defraud Use a computer to defraud	Cygnet
10555/11 (related to 1344/12)	10 th September 2011	Use a computer with intent to defraud Use a computer with intent to defraud Use a computer with intent to defraud	Cygnet
10048/11	11 th September 2011	Assault a police officer Common assault Unlawfully carry a dangerous article in a public place Threaten a police officer	Sandy Bay
12266/11 (related to 1522/12)	6 th October 2011 28th October 2011	Common Assault Drive whilst not the holder of a driver licence Stealing	Woolworths — New Town Target — Hobart
11949/11	21 st October 2011	Stealing Stealing Stealing	Big W — Glenorchy Chickenfeed — Glenorchy Woolworths — Glenorchy
715/12	11 th November 2011	Stealing	Woolworths — Claremont
12824/11	15 th November 2011	Stealing	Big W — Kingston
12692/11	22 nd November 2011	Unlawful possession of property	Glenorchy
65/12	30 th November	Stealing Stealing Stealing	Target — Hobart, Woolworths — Rosny Big W — Rosny
12652/11	3 rd December	Contravene conditions of a notice	Woolworths — Huonville
1225/12	11 th December	Drive whilst not the holder of a driver licence Make off without payment	Brooker Highway — Hobart
1408/12	7 th January	Stealing	Tip Shop — South Hobart
1344/12 (related to 10360 & 10555)	2 nd February	Breach of bail
2644/12	7 th February 16 th February	Stealing Stealing	Woolworths — New Town, Target — Hobart
1522/12 (related to 12266/11)	7 th February	Breach of Bail
2867/2012	22 nd February 2012	Common Assault Destroy Property Trespass Trespass	Big W — Rosny

Injuries and victim impact statements

14 Jacinta Hall, the victim of the common assault, suffered bruises on her left arm and a sore swollen neck, which was tender and painful for around one week. Thereafter she recovered well. She was quite shaken up on the day and found it a bit scary to go to work for a few days, but soon got over it. She had trouble sleeping on the night of the incident. She did not take any time off work.

15 Darren Richards, the victim of the first charge of aggravated armed robbery, was quite frightened by what occurred and took three days off work.

16 Mrigesh Khattri, the victim of the second charge of aggravated armed robbery, suffered two stab wounds. He was taken to hospital but the wounds did not require stitches. The wounds were painful and...