TASMANIA v DEREK LESLIE GRAEME SMITH 25 JUNE 2021
& KYE JOHN EDWARD CHARLES LOUNEY
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendants have been found guilty of one count of aggravated armed robbery and one count of aggravated assault arising from events that happened in the early hours of the morning of 6 December 2019. At about 2am, about 10 minutes after a customer had left, the defendants went into a 24-hour service station/food outlet in New Norfolk. They had masked their faces and one, who I am satisfied was Mr Smith, was carrying an apparently shortened firearm, or what looked, for all intents and purposes, to be a firearm. Two employees were behind the counter at the time, Daniel Elliott and Janelle Russell. They heard shouting and yelling and saw two men come up to the counter. Mr Smith spoke to Mr Elliott demanding money saying, “We’re not here to hurt you”. Both employees took money from two separate tills, and put the money into a paper bag which was then handed over. During this time, Mr Smith was close to the counter pointing the firearm across it, while Mr Louney was restlessly pacing backwards and forwards behind him. These movements are clearly shown on CCTV footage. During the time when the money was being obtained, Mr Russell tried to locate the duress alarm which was underneath one of the tills. At this point, Mr Smith said, “If I was you, I wouldn’t do that”. Once the defendant had the money – abut $600 – they fled and the employees raised the alarm. Police having been notified, officers were deployed to keep watch on roads leading from New Norfolk. At about 2.15am Constables Nikayla Roach and Emma Douglas were sitting in a marked police vehicle parked on top of a roundabout in Chigwell, facing east. They saw a car being driven from a northerly direction. It went around the roundabout travelling immediately in front of them, and the officers were able to see two occupants, the driver and a front passenger. The officers gave chase having activated the lights and siren. As the pursued vehicle approached an intersection officers saw the brake lights activated a couple of times and then the vehicle turned right into another street. A short distance along that street the vehicle slowed from about 80km/h to about 40km/h at which point the passenger, who I am satisfied was Mr Smith, leant out of the passenger window, faced backwards and pointed the firearm at the pursuing police vehicle. About 10 metres separated the two vehicles at that time. Const Douglas, who was driving the police vehicle, immediately braked and started to turn the car around while Const Roach ducked down under the dashboard. Both officers thought they were about to be shot at. The defendants then drove away. The officers attempted to find them, to no avail. About 20 minutes or so later, the officers were notified of a fire in the Glenorchy area. When they went to investigate, they found a vehicle on fire in the yard of a metal recycling plant. It proved to be the vehicle in which the defendants had been travelling. I have victim impact statements from all four persons involved in these events. Mr Elliott says he thought there was a very real possibility he would be shot. He says he has been diagnosed with post-traumatic stress disorder and has flashbacks. He has difficulty sleeping and is on antidepressants. He is anxious, withdrawn and angry and it has put a strain on his relationship with his family and friends. He felt he had to change jobs. He was moved to another store but could not work overnight shifts, and was forced to look for another job. He has a casual position in retail and has suffered financially as a result. This causes additional stress in the family. Ms Russell was scared that they would end up dead. She also suffers from PTSD with flashbacks and panic attacks. She has had to have counselling and has also had to give up her job in the store. She said she was both terrified and angry that this had happened to her in her workplace. She constantly relives the night. She has more recently gone back to work for the organisation but at a location a long way from New Norfolk which means a lot of expensive travelling for her. She is generally angry and frustrated and this has affected her relationships with friends and family. Const Roach said she thought the man in the car was going to shoot; she felt scared and terrified. She had a moment where she thought she was going to die. She had no appropriate cover for protection from a firearm. She says the fear she experienced at the time is something she still struggles with. It has made her anxious in performing her work duties and she suffers a lack of confidence. She finds it difficult to sleep. Emotional breakdowns have had an impact on her family and friends. Const Douglas also believed she was going to be killed. She has night terrors. She says she is hyper-vigilant and reactive at work and at home. At the time of the incident she said she was feeling quite hopeless and was not able to protect herself. She has had difficulty at work coping with situations which potentially involve firearms, and her personal life has been adversely affected. She is seeing a psychologist. Generally she has lost a lot of the confidence she had as a police officer.
The defendant, Mr Smith, is now 36 years old. He has a lengthy record of offending in this State starting in March 2005, and he has a record in Queensland and New South Wales mostly before that, starting in 2002. He was born in Tasmania but moved interstate for a time before returning. He was raised by his mother and grandmother, and showed behavioural problems from an early age. One trigger for this may have been that he discovered that the man who he thought was his biological father, was in reality his stepfather, and who seems to have physically abused him. He left home at an early age, became nomadic and was exposed to drug use. Drug and dishonesty offences in Queensland and New South Wales eventually led, in March 2004, to a term of imprisonment in New South Wales of nine months. While in gaol he was seriously sexually assaulted. I have a report from a psychologist, Dr O’Donnell, dated 12 February 2008 which confirms the existence of PTSD with depression, and with substance abuse issues in response to the assault. It is more accurate to say that his drug use escalated as a result of this incident and although there were some periods of respite since, little progress has been made. In this State, his record predominantly consists of many dishonesty matters – principally aggravated burglary, burglary and stealing – and serious driving offences, but there are several convictions for assault. There is clear evidence of complete disregard for authority and court sanctions. Prominent in the list are convictions for robbery and armed robbery committed on separate occasions a few days apart in May 2014. Both involve attacks on an individual walking in the street – the second one carried out in company with two others – and stealing cash. Rehabilitation was seen as a weighty factor, and on 4 December 2019 he was sentenced to 12 months’ imprisonment suspended on conditions including the performance of 130 hours of community service. There was a probation order for two years made. About 15 months later there was further serious offending leading to a sentence of 12 months’ imprisonment partially suspended on conditions. More particularly, on 6 March 2017 on a charge of assault police, the earlier sentence of 12 months was activated and the defendant was sentenced to 15 months’ imprisonment cumulative. He was granted parole when eligible but that was later revoked. More recently, on 1 July 2019, on a miscellany of offences but primarily injury to property and breaches of a family violence order, he was sentenced to a total of three months’ imprisonment suspended on conditions. The present offending was about five months after the imposition of those terms, and bit over three months after release from prison after serving the term earlier imposed. There is an application to activate those sentences. I was told that after being granted bail on the present offences, the defendant has done much to address his difficulties and, as it was put, “has turned his life around”. He lives with his mother and has been drug-free for about a year. He has endured strict bail conditions akin to home detention. In particular, he has become actively involved in parenting. He has three children, with two of whom he has little contact. But the third, an 11 year old son, lives with Mr Smith and he has fully immersed himself in the child’s upbringing. I have letters from the child’s school, noting that the defendant has supported his son’s education by attending all meetings as required or requested, and by being supportive of general school requests, requirements and policies. I also have supportive letters from Baptcare to which the defendant was referred by his son’s support worker. The aim was to promote and improve the father/child relationship and, in general terms, to provide security and stability.
Mr Louney is now 24 years old; he was 22 at the time. He is still a young man but has a very lengthy record of offending. There is a lengthy record as a youth starting when he was 13. This starts with one count of armed robbery and five counts of arson for which he was sentenced to suspended youth detention. A little over a year later that was activated. Regular offending continued, mostly involving dishonesty, but including destroying property and setting fire to property. He spent frequent periods in youth detention. That pattern continued after adulthood. The range of offending extended to serious driving offences, including dangerous driving, and anti-authority offences. In November 2016 he was made the subject of a drug treatment order the custodial part of which was seven months. That approach did not succeed and he was imprisoned. In June 2018 he was sentenced to seven months’ imprisonment for a variety of offending including breaches of a family violence order. In August 2018 for quite a number of breaches of an interim family violence order he was sentenced to two months’ imprisonment suspended on conditions. Of particular relevance is a court appearance on 17 April 2019 when, for a number of offences including evading police with aggravated circumstances, driving whilst disqualified and motor vehicle stealing he was sentenced to three months’ imprisonment suspended on conditions. This offending happened about eight months later, and he is in breach of conditions of the suspension. I am asked to activate the three months term. Mr Louney has not been of good behaviour since this offending. He has served two short terms of imprisonment, mostly for breaches of bail but including charges of possessing cannabis. Mr Louney is an only child; his biological father and his mother separated when he was a baby. His mother and stepfather were and are supportive and he had a relatively normal early upbringing until around the age of 8 or so, when he was sexually assaulted by the elder brother of a friend of his. His behaviour at home and at school deteriorated. He was suspended from school at times and ultimately stopped going. This coincided with the start of his offending as a youth. Frequent court appearances are a consequence, as are long periods in Ashley. During the time there he met a nurse with whom, despite the disparity of ages, he formed a relationship and they have one child. The relationship broke down after about a year. She is the subject of the family violence orders and he does not see the child. However I was told that he hopes to initiate contact at some stage and wants to better himself to pave the way for that to happen. From cannabis use in his mid-teens his drug use escalated to heavy use of methylamphetamine and morphine. That use existed at the time of this offending and it is said to explain his erratic behaviour in the store as shown on the CCTV. It was put that the abuse of such drugs arose from self-medication for PTSD type issues following the sexual abuse. It was also put that Mr Louney is now effectively institutionalised, and does not cope well when out of prison. The longest he has spent in the community since his mid-teens is about 10 weeks. He has recently taken some steps towards drug rehabilitation by placing himself on the waiting list for Correctional Services opioid replacement therapy but resources are limited.
It goes without saying this was a very serious escapade involving crimes of grave concern. Crimes like this aggravated armed robbery cause significant community concern. They often involve commercial premises open late at night and in the early hours of the morning for public convenience, and are staffed by people who have no real protection. Both the employees and the businesses are vulnerable. The crimes have the capacity to cause long-term harm to staff. I am not able to make any finding as to whether the firearm was real or not. An interpretation of the text messages that were exchanged between the two on the previous night might suggest the firearm was real but not loaded, but again I am not able to make any finding one way or the other. As far as Mr Elliott and Ms Russell were concerned, the firearm appeared real enough. The same can be said for the police officers who were threatened into abandoning their pursuit, and feared they would be shot. Those officers were simply carrying out their duties. The factors of general deterrence and denunciation are paramount and I would be failing in my duty if I were not to impose lengthy terms of imprisonment. I record that in relation to each defendant counsel made the submission that I consider making a drug treatment order and obtain a report to that end. It was submitted that I could circumvent the limitation on the length of the custodial part of such an order by employing a little “creativity”; in particular, imposing separate sentences for each crime. I took the view that I would not consider making drug treatment orders given the seriousness of this offending, and that leaves to one side the argument about whether such an order would be prevented because actual bodily harm has been inflicted within the meaning of s 27B(1)(a) of the Sentencing Act. Separate sentences for separate crimes are permitted by s 11 of the Sentencing Act, but the reality is that the crimes constitute one course of conduct. As to distinguishing between the two defendants, there is little of substance in terms of the roles played. Mr Smith led the way with making the demands while holding the firearm, but Mr Louney was prowling backwards and forwards in front of the counter holding a large bag into which the money was no doubt later placed. In the text messages the evening before the robbery the defendants confirmed arrangements for the target, a firearm and the vehicle to be used. I am satisfied Mr Louney was the source of the car. This was not an impulsive robbery, but one well thought out. It is agreed between the parties that Mr Louney is criminally responsible for the aggravated assault by virtue of s 4 of the Criminal Code, and I am content to proceed on that basis. His moral culpability flows from this as a party to a common intention to prosecute an unlawful purpose, and directly and primarily involved in its prosecution. Mr Smith of course is 12 years older and his record of offending is correspondingly greater. He has twice appeared in this Court for three crimes of serious violence. Specific deterrence is important in his case, although there are some positive recent signs. Mr Louney is still a relatively young man but is a persistent offender at a reasonable level of seriousness, and specific deterrence is also a feature of his case. The gravity of the present crimes substantially outweighs considerations of youth, but they remain a factor. As to both men, I will provide for parole eligibility. If ultimately granted, no doubt the Parole Board will address drug addiction and mental health issues.
Mr Smith and Mr Louney, I have set out the facts and what I see to be the relevant considerations in your cases.
Mr Smith, although a different form of offending was involved, in the circumstances I do not consider it unjust to activate the suspended term of imprisonment, but looking at the situation overall, and having regard to your more recent behaviour, I will make that concurrent with the term to be imposed for these crimes. The sentence of three months is activated to commence on 5 May 2021 to take into account the time you have spent in custody. On these crimes you are convicted and sentenced to 5 years’ imprisonment to be served concurrently. I will give you an opportunity for a reasonable period of parole, and order that you not be eligible for parole until you have served 3 years of that term.
Mr Louney, I take the same view about the activation of the suspended sentence in your case. That will be activated to commence on 13 March 2020 to take into account all of the time you have spent in custody on these crimes. You are convicted of the crimes and sentenced to 4 years 6 months’ imprisonment to be served concurrently. I order that you not be eligible for parole until you have served one half of the term.