STATE OF TASMANIA v JAMES STEPHEN WILLIAM RUSSON 2 NOVEMBER 2022
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant, James Stephen William RUSSON, has pleaded guilty to one count of attempted armed robbery contrary to s 240(3) and s 299 of the Criminal Code 1924 and one count of armed robbery contrary to s 240(3) of the Criminal Code 1924.
On 19 April 2022 at approximately 3:48 in the afternoon the defendant entered the Ampol Service Station at 152 Davey Street, South Hobart. He was disguised and masked. He walked up to the service counter where the complainant Danial Saleem was working. The defendant said: “Give me all of your money and smokes“. The complainant said in response “are you kidding me?” and the defendant pulled out a small knife with his right hand and pointed it in the complainant’s direction. The knife was about five inches long with a black handle.
The complainant realised the defendant was serious and walked from the till area into the office and locked the door behind him, calling the manager and the police. The defendant then left the store empty handed.
At approximately 3:50pm on the same day the defendant entered the Ampol Service Station at 272 Macquarie Street, South Hobart. He walked up to the counter and produced a knife. The complainant, Rebecca Mallipudi, recognised the defendant as he had been there about ten minutes earlier and had attempted to purchase cigarettes, however his bank card was declined. He was wearing a black hoodie over his head.
He produced a small knife and pointed it towards her saying: “come on, give me some packets of cigarettes, give me money, give me $50.00 dollars”. As this occurred, a female customer entered the store and the complainant placed a packet of Parker and Simpson Blue Fresh Blast cigarettes valued at $32.50 on the counter and opened the till and took out $50.00 and placed it on the counter. The female customer fled the store, and the defendant left with the items. The defendant was located and arrested and has been in custody since 19 April 2022.
I have seen a victim impact statement from Ms Mallipudi. She states:
“Since the accident, I did not feel good and I have not been normal. I booked an appointment for counselling. I have been attending these sessions which have been helping me to slowly pull myself back up again.
I noticed I have been a bit unsettled once again when I had to work on this Victim Impact Statement. Though I have been attending counselling, I still feel that I’ve lost the feeling of being safe and continue to look out for the options I have for being safe, such as whom can I call out to be there with me, which group do I walk with so no one will notice me, and hide behind the mask.”
The defendant has prior convictions including, relevantly, nine burglary and stealings and a Criminal Code assault.
A compensation order is sought pursuant to s 68 of the Sentencing Act 1997 in favour of the Ampol Service station in the sum of $82.50 and I make that order.
I have had the benefit of a pre-sentence report and I am informed that the defendant expressed to its author, his regret and remorse regarding his behaviour and accepted full responsibility for his actions. He stated that on the day of the offence he had been awake for approximately four days, under the influence of alcohol and methylamphetamine. He stated that he cannot explain his thought processes at the time, but upon reflection stated that he was not thinking straight and he would never have done what he did sober. He expressed an understanding of the seriousness of his offences and the likely impact upon the victims, and stated that he was sorry and if he had a chance to apologise to them, he would.
In detailed sentencing submissions by Ms Monk, Counsel for the defendant, it is submitted that the defendant had an unstable upbringing marked by parental neglect, which led him to develop a drug addiction. That he has some mental health issues and a mild intellectual disability, and that he is still a young man who has insight into his offending, has expressed remorse and has good prospects of rehabilitation.
He is 23 years of age. He has no children and has never previously been in a significant relationship. He was born in Perth, Western Australia, and is the youngest of five children to his parents’ previous union. He had a complex family background in the context of maternal mental health concerns and neglect within the family home. Nonetheless, he completed Year 10 at Oatlands High School and commenced at Hobart College for Year 11, but did not complete it. He experienced intellectual and physical developmental delay throughout his childhood, and was diagnosed and previously medicated for ADHD, which impacted on his ability to engage with his education.
His mother would often spend extended times away or in hospital, resulting in him and his siblings needing to fend for themselves. After his mother decided to leave Tasmania, he commenced living a transient lifestyle of couch surfing and occasionally sleeping on the street. He started heavily using drugs and alcohol and was involved in an anti-social group.
He relocated to Western Australia in January 2019 after receiving threats to his safety from prior associates. Whilst in Western Australia, he commenced living with his father. He started work as a painter and later obtained his own private rental housing, which was his first and since then only independent housing. He experienced a lengthy period of stability in Western Australia and was not offending, using drugs, or coming to the attention of police. He also sought to address his unresolved mental health concerns and commenced counselling for his mental health and anger management issues. This was a very stable period in his life, where he demonstrated that he was able to live a pro social lifestyle.
Upon his return to Tasmania in late 2019 he was imprisoned for six months in respect of outstanding charges. After his release he remained stable until about mid-2020 when he encountered some difficulties and came to the attention of police. The resumption of periods on remand, coupled with difficulties relating to accommodation, saw him return to drug use. Whilst he eventually went to live with his brother, his re-entry into an anti-social lifestyle had already occurred and he was again using drugs and alcohol around the time of the commission of the present offences.
It is submitted on the defendant’s behalf that his conduct was both clearly unsophisticated and ill-thought out, having occurred in broad daylight and in a busy location monitored by CCTV cameras. His conduct was no doubt intimidating but there were no specific threats directed at the complainants, although it is accepted, on his behalf, that he was holding the knife in clear view of each complainant. There was also a physical barrier in the form of a Perspex screen between himself and the victims, and he did not attempt to enter behind the service counters.
The defendant entered pleas of guilty to both charges in the Magistrates Court on 13 July 2022 and was then committed for sentence. It is submitted that this is indicative of remorse and demonstrates a willingness to facilitate the course of justice. I accept that submission and the defendant is entitled to a genuine discount on an otherwise appropriate sentence for that.
It is of note that he was recently accepted under the NDIS in relation to his ADHD and his diagnosis of a ‘mild intellectual disability’, with concerns that his condition ‘impacts upon his impulse control and consequential thinking skills’. The support that he will be offered by NDIS is likely to provide him with the opportunity to live a stable and supported lifestyle upon his release from prison. This would be especially so in conjunction with a Community Corrections Order.
The defendant has been assessed as requiring a high level of supervision and consequently he is deemed suitable for a period of supervision with Community Corrections by way of a Community Correction Order of no less than twelve months. It has been recommended to me by the author of the pre-sentence report that the following special conditions from section 42AP of Sentencing Act 1997 be included:
Subsection (1)(c) – the offender must, during the operational period of the order, submit to the supervision of a probation officer as required by the probation officer;
Subsection (1)(e) – the offender must, during the operational period of the order, undergo assessment and treatment for drug dependency as directed by a probation officer; and
Subsection (1)(j) – the offender must, during the operational period of the order, submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
I make a Community Protection Order for an operational period of two years from the defendant’s release from prison. That order will contain all of the statutory core conditions as well as the special conditions I have just enunciated.
It goes without saying that armed robbery and it follows, attempts at that crime, are serious crimes, almost always attracting substantial periods of imprisonment. The present cases are no different although they may be classified as at the lower end of the scale of seriousness and were part of what might be considered as a single course of conduct. It must be remembered, of course, that the defendant remains a young man, which is of considerable significance in sentencing.
The defendant is convicted of both crimes and I impose a single sentence of two years and six months’ imprisonment, backdated to 19 April 2022. The defendant is not to be eligible for parole until he has served half of that sentence.