STATE OF TASMANIA v ANTHONY PAUL SMITH 19 JUNE 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr Smith, you have pleaded guilty to one count of aggravated armed robbery.
You committed the crime on 13 October 2018. At about 8:45 pm, you and a co-offender went to a residence, intent on criminal conduct, which included, at least, stealing money and drugs from within the residence. You were both armed. Your co-offender was armed with a machete and you were carrying a metal object. A dispute has arisen as to the nature and use of that object. I will say more about this shortly.
When you arrived, you opened the unlocked front door and entered the residence. You did not seek nor have any permission from the occupant to do so. As things turned out, the homeowner had stepped out temporarily and was not present when you arrived. However, the apartment was occupied by his friend, a 59 year old male, who was visiting at that time. I will refer to him as the complainant, notwithstanding that he was not the owner of the property that you stole. What occurred next was, in part, subject to dispute. In order to resolve the dispute, I heard evidence from the complainant and from you. I also watched a CCTV recording made by cameras placed on the exterior of the residence, and have read the complainant’s statutory declaration to police. The complainant asserts that you and your co-offender threatened him with the weapons. There is no dispute by you that the machete was used by your companion in a threatening manner towards the complainant. However, the complainant also asserts that the metal object appeared to him to be a firearm and was used by you as such. In particular, his evidence was that you broke the object open, as you would a shotgun, and showed him an un-fired shot gun shell located inside its barrel. In other words, you were demonstrating to him that the object was a firearm and was loaded. He says that you then said to him, “You know what this is, don’t you.” You then closed the apparent shotgun, pointed it at his head and said to him, “Yeah it’s a live one. You move and you’re going to cop it.” He says that he genuinely believed at that point that his life was under significant and direct threat and he was in considerable fear. You then demanded that he show you where the homeowner hid his money, but he was unable to produce any money. You then handed the firearm to your companion, who continued to hold it pointing at the complainant’s head, while you proceeded to ransack the house, looking for property to steal. You in fact took a significant quantity of various types of property when you left. You and your companion were at the premises for about 10 to 15 minutes.
In evidence, you contended that the metal object was simply a pole that you had removed from your motorcycle. It was hollow at one end. You conceded that you took it with you to use as a weapon. However, you disputed that you had any intention to use the object as a firearm, that it was capable of use as a firearm, and that it contained any form of ammunition. You said that it could not be cracked open. You disputed the complainant’s evidence that you showed him a shell and that you used the object to threaten him in the manner that he described. Of course, some threat was implicit in your conduct in bringing the object with you in the first place.
Before I am permitted to use the disputed facts in a manner that aggravates your culpability for this crime, I would need to be satisfied of those facts beyond reasonable doubt. The use of a firearm as described by the complainant would aggravate the objective seriousness of the crime, and accordingly that is the test I must apply. Having considered all of the evidence, I am satisfied beyond reasonable doubt that the complainant has given an accurate version of what took place on the night in question. I concluded that he gave truthful evidence. His evidence was detailed, logical, internally consistent, and had the ring of truth to it. I detected genuine emotion when he described his reaction to your use of the object as a firearm. Of course, I cannot be satisfied that the object, in fact, had the capacity to discharge a shot, but that is how you presented it to the complainant. I accept his evidence about the manner in which he was threatened by you with the object.
I do not believe your evidence as to the nature of the object or its use by you. I was not impressed with your evidence. Irrespective of the reason, you have not produced the object, which would clear up this issue immediately. I do not draw an adverse inference about this, because you have offered an explanation for your inability to do so, but neither is this evidence available to contradict the complainant’s version. Further, there are some considerations which support the conclusion that the complainant is telling the truth about what took place when this crime was committed, and that you are not. They are as follows:
- Firstly, in his statutory declaration and his evidence, the complainant said that you and your companion were wearing balaclavas and black gloves when you first entered the premises. He also said that you were both wearing dark clothing. In your evidence, you said that you were wearing sunglasses and a baseball cap, but disputed that you were wearing a balaclava or had anything on your hands. I have carefully observed the CCTV footage. It is apparent that at the time that you and your companion approach and enter the residence, you are each wearing something to cover your face and, as well, you both have hoods pulled over your heads. It is not clear from the footage that the face coverings are specifically balaclavas, but whatever they are, they cover your faces. This is substantially consistent with the complainant’s observations. Further, you are clearly wearing black gloves as he described. It is true that when you emerge from the residence some time later, you have removed the face coverings and the gloves, but this is also consistent with what the complainant told police and said in evidence. Further, it is also apparent from parts of the footage when the CCTV displays in colour, as opposed to black and white, that you were both wearing dark clothing as he described. I am satisfied that the footage corroborates the truth of the complainant’s observations as to what you were wearing when you entered the premises, and that you did not give truthful evidence about this. This is an observation that supports the complainant’s credibility and reflects adversely on your credibility.
- Secondly, the complainant was cross-examined about inconsistency between his evidence and the statutory declaration. It is true that in his evidence he used the term “shotgun” to describe the firearm, and that he did not use this term in his statutory declaration. However, he did describe the object as a “homemade gun”, and in all other respects the detail contained in his statutory declaration was entirely consistent with what he said in evidence. I do not regard his failure to use the term “shotgun” in the statutory declaration as reflecting adversely on his credit. On the contrary, it is consistent with the exercise of care when he spoke to the police. His use of that term in evidence is understandable, given that he has now had time to reflect on what you showed him, and draw his own conclusions about it. I have absolutely no doubt that he now firmly believes that the object was capable of use as a shotgun, and that this was what you intended him to believe.
- Finally, there is the question of your refusal to identify the man with whom you committed this crime. I reject the evidence that you gave when you answered questions in cross-examination about this. You claimed that you only knew his first name and had no other means of identification of him. I simply do not believe this. You have not claimed the existence of any remorse for this offending, and so your refusal to identify this man is not relevant to the question of sentencing. You cannot suffer a penalty because you choose to exercise your right to silence about this point. Of course, your failure to co-operate with authorities would have been relevant to any claim you made of remorse in respect of your commission of this offence, but as that claim has not been made, it is not relevant. However, your willingness to give false evidence about this question reflects adversely on the credibility of the remainder of your testimony. I do not believe your evidence about this, and I do not believe your evidence about the disputed facts.
Accordingly, I intend to proceed to sentence on the factual basis provided in the prosecution facts and the evidence of the complainant. I am satisfied beyond reasonable doubt that you did break open the weapon and show the complainant a live shell contained within it. I am satisfied that you represented the metal object as a working firearm and directly threatened the complainant with it. This is a factor which significantly aggravates the objective seriousness of the crime. Of course, the same comments apply to the admitted presence and use of the machete by your co-offender.
I have received an impact statement from the complainant, and, of course, I have now heard his evidence. He was understandably terrified during these events and feared for his life. The production of such fear was your purpose in threatening him with the weapons. I accept that he has been significantly affected by his experience and continues to suffer ongoing psychological consequences.
You are 29 years of age and were 28 when you committed this crime. You had a difficult childhood, have limited education, and have had a long-term problem with the use of illicit drugs. You have three children, but none presently reside with you. You have a concerning criminal history. It commenced when you were 13 years of age. In 2010, you were convicted and sentenced by this Court for the crime of demanding property with menaces and stealing. Your conduct on that occasion has similarities to your conduct on this occasion. Since then, you have been sentenced to suspended and actual terms of imprisonment on a number of occasions. At the time that you committed this crime, you were subject to three separate suspended sentences. Each of those sentences was recently activated by a magistrate, and you are serving same at the present time. The fact that you committed this crime while subject to suspended sentences is also an aggravating factor. I am satisfied that the sentence I impose should take into account the clear need for personal deterrence.
This was a serious brazen crime. You invaded a home while in company with another, and you and your companion had weapons with you and used them to overbear the will of the occupant of the premises. You kept him captive, under threat of lethal force, for a significant time. You did not cause any actual physical injury to him, but the threat of harm has had a significant impact upon him. Crimes such as this cause considerable apprehension and concern throughout the community. I am satisfied that general deterrence and denunciation are also important sentencing considerations.
There is little to mitigate your culpability. The property taken by you has not been recovered. You have pleaded guilty, but any beneficial effect that that plea may have had in respect of the complainant has now been negated by the need for him to give evidence in the disputed facts hearing. You made some limited admissions, but did not otherwise co-operate with the authorities. You have not claimed remorse, but there would, in any event, be little evidence to support such a claim had it been made.
Anthony Smith, you are convicted of the crime to which you have pleaded guilty and sentenced to a term of imprisonment of three years and four months. I would have imposed a sentence of three years and six months, but have reduced this to take account of time which you have already spent in custody and which has not been taken into account in the sentences recently imposed by the magistrate. The sentence I have imposed will be served cumulatively upon the last of those sentences. Given the seriousness of the crime and the need for personal deterrence, I think that the non-parole period should be moderately higher than the minimum period. Accordingly, I order that you not be eligible for parole until you have served two years of that sentence.
I make a compensation order in favour of Ronald Gorringe in a sum to be assessed, and I adjourn assessment of that sum sine die.