STATE OF TASMANIA v NICHOLAS LEONARD PAYNE 1 JULY 2019
COMMENTS ON PASSING SENTENCE PEARCE J
Nicholas Payne, you were found guilty by a jury of attempted robbery. For the most part the facts for sentence follow from the jury’s verdict. At about 4.30 pm on Friday, 25 May 2018, the complainant, a man then aged 36, was walking home after work along George Street in central Launceston. He was carrying a small bag which looked like a lunch bag. You crossed from the other side of George Street directly towards him. He saw you coming and became alarmed when you started to walk very close behind him. He told the jury that, as he turned towards you, you said to him “if you don’t give me this lunch bag, I am going to crack you on the face with this hammer”. He also told the jury that when you made the threat you were holding a hammer. Your attempt did not succeed because he immediately ran onto the street, before running back along George Street and into York Town Square. You ran after him for at least part of the way, although he was well in front of you. He ran home and called the police.
You were identified from CCTV and charged with attempted armed robbery. The jury must have been satisfied beyond reasonable doubt, as I am, that you made the threat I have described. However the jury was not satisfied that you were, in fact, holding a hammer.
You are now aged 37. You are a long term drug user. You used cannabis, became addicted to opioids and then, for the last six years or so, have used methylamphetamine. You have a record for offences of dishonesty and some violence. You went to prison for two years in 2001 for armed robbery. You were sentenced to imprisonment for a year in 2009 for assault. You have received other sentences of imprisonment, some of which were suspended, and probation for stealing and burglary and driving offences. At the time this crime was committed you were heavily addicted to drugs. You had taken yourself away from your partner and children and become homeless and destitute. You turned to crime. The bag you attempted to steal contained a phone and a wallet, but you had no way of knowing that. It is possible that you were hungry, but I think it more likely that your intent was to obtain anything of value which may have been inside. This attempted robbery took place in the course of the period around May 2018 during which you committed many crimes of dishonesty, mostly burglary and stealing from businesses in Launceston. On 28 March 2019 you were sentenced by a magistrate for those and other offences committed later in that year to imprisonment for 12 months from 10 September 2018. Then, on 7 May 2019 you were given a cumulative term of imprisonment for three months for some firearm offences. They are not prior convictions for sentencing purposes but are relevant to totality. For that total term of 15 months no parole order was made. That means you are not eligible to apply for parole. For the longer of those sentences you will be eligible for remissions, which, if granted, will result in an earliest release date of 9 September 2019. Because you are not otherwise eligible for parole I will order the earliest possible eligibility for the sentence I impose. Since you have been in prison you have not used drugs. Your health has improved, and you intend to continue to address your addiction. I accept that all hope of your rehabilitation is not lost, but at the same time you have been given many chances before.
What you did was serious because, in a public street, you made a disturbing threat of violence. It involved the threatened use of a weapon. I am satisfied beyond reasonable doubt that the complainant genuinely believed that you had a hammer. I am satisfied that he held that belief not only because you referred to a hammer, but also because you intended him to believe you had a hammer and acted as if you had one. I must not sentence you on the basis that his belief was true. Your conduct was not planned. It was opportunistic, but was not spontaneous in the sense that you crossed the street intending to confront him. He was immediately fearful. When he ran off you followed him which added to his fear and demonstrated the seriousness of your criminal intent. He is a sensible and mature man but understandably suffered, and continues to suffer, the psychological impact of your crime. He continues to feel hyper-vigilant and vulnerable. Members of the public should be entitled to walk the streets without being subject to threats of this kind. You are not entitled to a discount for a plea of guilty, which would have avoided the additional trauma to which the complainant was put by having to give evidence. There has been no demonstration of remorse.
Nicholas Payne, you are convicted of attempted robbery. You are sentenced to imprisonment for 12 months cumulative to the terms you are currently serving. I order that you not be eligible for parole until you have served six months of that sentence.