STATE OF TASMANIA v MARK JAMES SMITH 26 JUNE 2020
COMMENTS ON PASSING SENTENCE BRETT J
Mr Smith, you have pleaded guilty to one count of armed robbery. You also pleaded guilty to the summary offences of possessing and using cannabis and failing to comply with a direction of the Director of Public Health.
You committed the armed robbery and the other offences on 11 April 2020. At about 7:15 pm, you armed yourself with a knife, and equipped yourself with gloves and a black stocking to use as a face mask, and went to the Subway sandwich store in Ulverstone. You entered the store wearing the mask over your face and holding the knife. The only occupant of the store was a single staff member, a 17-year-old female. She was there alone. There were no other staff on duty or present in the building at the time.
You approached the door at the side of the counter, holding the knife. You opened a plastic bag and told the staff member to “put all the money in the bag”. When she hesitated, you held out the bag and thrust the knife toward her and again demanded that she give you the money. You were only a metre away from her when you did this. She then complied with your demand and placed the contents of the till amounting to $348.80 in your bag. You then left the store and returned to your residence. On your way, you concealed the weapon and the gloves in a grassland area. The mask was found hidden in your caravan. The money has not been recovered. You told police that you spent the money on drugs.
The summary offence concerning the public-health direction was committed because you were absent from your primary residence without a lawful reason. The drug offences relate to a small amount of cannabis located by the police when they searched your caravan.
I am told that the complainant has declined to make a victim impact statement. During discussion about this, it was made clear that she declined not because there has not been impact, but rather because she simply does not want to talk about this incident anymore. I think it is highly probable that your actions have caused significant impact, and, at the very least, there is obvious potential for such harm. It is the experience of the court in respect of matters such as this, that the type of threat posed by a crime of this nature invariably causes significant and often long-term psychological and emotional harm. In this case, you subjected the staff member to direct threat of harm from the knife. You were standing close to her, and you used the knife in a threatening manner to overbear her resistance to your demand. You were clearly and deliberately communicating the message to her that you would use the knife to harm her if she did not comply with your demand to hand over money. The threat must have seemed very real to her. She was particularly vulnerable because of her age and the fact that she was on the premises alone. Your use of the facemask would have undoubtedly increased her sense of threat and terror. I intend to proceed on the basis that it is highly probable that some actual harm has been the result of this crime and that, in any event, there was and still is significant potential for harm.
You are 42 years of age. Your criminal history largely consists of traffic offences and some family violence offending and street offences. The traffic offending includes having failed an oral fluid test in 2013. There is nothing on your record that relates to conduct as serious as the act committed by you in this case.
You had a difficult upbringing, which included the perpetration of sexual abuse upon you between the ages of 10 and 14. Around that time, you commenced to use drugs and alcohol problematically, probably as a result of the abuse. This quickly developed into a significant problem with both substances. In your late teen years, you spent some time in the Army, but were eventually discharged because of your drug use. Your problem with illicit drugs has continued to plague you throughout your adult life. Eight years ago you entered residential rehabilitation. This was helpful for a while but you fell back into drug taking when you were working on fishing boats. By the end of 2019, your life was heavily affected by your drug problem and your relationship came to an end. In January, you spent some time in the Bridge program. A report provided to me from that facility indicates that you engaged well with the program and made significant progress, but in late March, you were asked to leave because of the ongoing use of drugs. You were heavily in the grip of your drug addiction when you committed this crime.
I have been asked by your counsel to seek a drug treatment order assessment report. I have considered this request, but have determined not to seek such a report. The court is not permitted to make a drug treatment order, unless it considers that it is appropriate to do so. In my view, irrespective of the outcome of the report, it would not be appropriate to make a drug treatment order in this case. While the question of your rehabilitation is a relevant sentencing factor, the objective seriousness of this crime and the consequent need for emphasis on general deterrence and denunciation are the primary sentencing considerations. Further, the length of the head sentence which is appropriate to this case will make that sentencing option in appropriate. I refer to my discussion of these considerations in the case of Tasmania v Joseph, which related to circumstances comparable to this case.
I consider this to be a serious case of armed robbery. There are a number of aggravating factors. The most significant is the use of the knife to personally threaten the young staff member, as well as covering your face with the mask. The crime was premeditated in the sense that you left your residence and went to the store taking with you the weapon and the mask. You targeted vulnerable premises which were open to the public at a time when members of the public, including families and children, might have been present. As I have said in other cases, I regard armed robbery as a crime against people, notwithstanding that it is concerned with the theft of property. It involves actual or threatened violence and invariably results in trauma and long-term psychological and emotional harm to its victims. It causes justified and widespread concern in the community. Because it is a crime which usually involves some degree of planning and premeditation, it is particularly susceptible to general deterrence. Those who would commit such crimes must realise that the inevitable consequence will be significant punishment.
In your case, the only appropriate sentence is a substantial term of imprisonment. I have moderated the head sentence to acknowledge your lack of prior convictions for similar conduct and your very early plea of guilty. I will also allow for release on parole at an early time to give the Parole Board the opportunity to address the question of your rehabilitation.
The orders I make are as follows:
1 You are convicted of the crime and the offences to which you have pleaded guilty.
2 I impose a global sentence of 2 years and 8 months’ imprisonment, which will be backdated to 15 April 2020. You will not be eligible for parole until you have served one half of the sentence.
3 I make a compensation order in favour of Subway Ulverstone in the sum of $348.80.
4 Pursuant to s 16 of the Crime (Confiscation of Profits) Act 1993, I am satisfied that the knife, mask and gloves seized by police are tainted property, and I order that that property be forfeited to the State. I specify the value of the property at $50.