DPP v Gardner & Coates [2004] VSCA 119

Court of Appeal (Vic)|2004-07-02|Before: WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.

Criminal law - Director's Appeal - Armed robbery and conduct endangering life - Appeals allowed and sentences increased.

Director's Appeal against trial judge's failure to make orders for compensation in respect of money stolen in robbery - Judge correct in declining to do so - Appropriateness of appeals against such orders pursuant to s.567A of Crimes Act 1958 discussed.

Ms. K. Robertson, Solicitor for Public Prosecutions

At about 9.50 a.m. on 25 January 2002, two men concealed themselves behind stored furniture in the tray of a Ford utility parked outside a disused Commonwealth Bank at 327 Racecourse Road, Flemington. They were wearing masks and were carrying loaded firearms; one man carrying a sawn-down shotgun, and the other a sawn-off .22 rifle and a .38 revolver. Although the bank was disused, there were inserted into its front wall two automatic teller machines which, from time to time were restocked with cash by Armaguard security personnel. The two men knew, presumably from previous reconnaissance, that the Armaguard van was due to arrive at or about that time. The utility in which the men were hiding had been previously stolen; and a further stolen vehicle, a Holden Commodore station wagon, had been parked by them in a street some little distance from the bank. It was to be used as the ultimate "get away vehicle".

The two men were the two respondents, Brian Gardner and Michael Coates who, at the relevant time, were aged 37 and 47 years respectively. Their previous criminal histories did not reveal them to be serial criminals; but each had served time in prison - Gardner for offences of burglary and theft, and Coates for assault causing serious injury. Their proposed escapade on this morning was clearly an escalation in the level of criminal activity to which they had previously been disposed. Nevertheless, the escapade had obviously been carefully planned; to the point where they knew from prior reconnaissance when and where the van and personnel were going to deliver and restock the cash, and to the stealing of vehicles to aid their robbery and implement their get away. Their possession of loaded firearms revealed a knowledge of potential resistance and an intention to repel it. Coates had rented a nearby house in Yarraville as a base from which they would launch the escapade, and as a "bolt hole" to which they would return. Their motives for this crime, as the judge said, were no more sophisticated than to enrich themselves at the expense of those whom they intended to rob.

The armed robbery which the respondents carried out on the morning of 25 January 2002 was a very serious example of that crime. It is, perhaps, best described in the terms which the judge used in the course of sentencing the respondents:

"There you lay in the load area of the utility, concealed by the cupboards, in wait for the guards to arrive. An Armaguard armoured van arrived at approximately 9.50 a.m. and drew up outside the bank with the rear of the van adjacent to the front door of the bank. It was driven by Mr. Mark Purcell, one of the three guards assigned to the job, and it was manned by another two guards, the Job Supervisor Ms. Rebecca Mitchell, and the escort, Mr. Mohammed Tabiaat. Ms. Mitchell's job ... was to transfer cash from the van to the bank and load it into the automatic teller machines, and Mr. Tabiaat's job, as escort, was to act as lookout and otherwise to protect Ms. Mitchell from harm. The consoles of the automatic teller machines protrude through the front window wall of the bank so that the machines may be operated by customers in the street. The machines themselves, however, sit inside the bank, immediately behind the front window wall, in a small room called the bunker. That is the point from which the machines are designed to be serviced and restocked with cash. Consequently, before removing any cash from the van, Ms. Mitchell and Mr. Tabiaat together checked inside the bank, including the bunker room, to ensure that all was clear. After satisfying themselves that all was clear, Mr. Tabiaat took up a post with his back to the front window wall of the bank and scanned the street for potential problems while Ms. Mitchell collected the cash from the van. Then, just as Ms. Mitchell drew near to the front door of the bank with the cash, Mr. Tabiaat noticed both of you running towards him from the utility, yelling, and that one of you was carrying what appeared to be a long firearm. As was later established by the evidence, Brian Gardner was carrying the rifle and the revolver and Michael Coates had the sawn off shotgun, and all three weapons were loaded. Mr. Tabiaat cried out urgently to Ms. Mitchell to `get in' and she ran immediately into the bank and into the bunker just inside the front door of the bank. Mr. Tabiaat followed close behind her. He managed to slam shut the bunker door but he was unable, or he forgot, to lock it. Gardner and Coates followed almost immediately in through the front door of the bank, Gardner first, close on the heels of Mr. Tabiaat, yelling and firing at least one shot either into the floor of the bank or to the back of the empty bank chamber, and Coates next after pausing to scan the street. Ms. Mitchell, by now terrified, dropped the money cases onto the floor of the bunker and sought cover against the wall to one side of the automatic teller machine inside but near to the door of the bunker. She was armed with a .35 magnum Reuger revolver and she drew it ready for action. But as she deposed in her evidence, she was so terrified at that stage that she could barely hold the weapon. Mr. Tabiaat was also seriously frightened. He moved back rapidly from the bunker door to take cover behind the second automatic teller machine, further from the door. He, too, drew his weapon which was a .38 Smith & Wesson revolver. But, as he said in evidence, he, too, was shaking so much with fear that the only way he could steady the weapon was by pressing his arm against his body and later by pressing the weapon against the automatic teller machine. You, Brian Gardner and Michael Coates, yelled out through the closed door of the bunker to Mr. Tabiaat and Ms. Mitchell to `give us the fuckin' money' and `you are going to die, you are fucking going to die' and other similar threats. And you kept on yelling those things and several variations on that theme. But Mr. Tabiaat and Ms. Mitchell did not give you the money. They were too scared of being shot to move. They waited in fear for their lives, hoping that if they did not open the door you would leave. But you did not leave. Instead you opened the unlocked bunker door from outside and there followed almost immediately an exchange of gun fire between Gardner and Mr. Tabiaat and Ms. Mitchell. Mr. Tabiaat fired all six of the rounds in the chamber of his revolver and then reloaded with a speed loader and fired a seventh. Ms. Mitchell fired four rounds from her revolver. Gardner fired his revolver four times, twice into the floor and twice in the direction of Mr. Tabiaat. Fortunately he did not hit Mr. Tabiaat or Ms. Mitchell but the situation could very well have been otherwise. One of Gardner's rounds went so close to Mr. Tabiaat as to hit the side of the machine behind which he was sheltering and the other hit the wall behind and above him and so close to him that he felt the heat of the bullet pass by. As the gun fire continued, one or other of you managed to reach far enough into the bunker to pull out one of the money cases from the floor of the bunker where Ms. Mitchell had dropped it and one or other of you continued for some time to try and reach for the second money case, all the time continuing to yell `give us the fucking money' and `you are fucking going to die', again with several variations on the theme. But Mr. Tabiaat and Ms. Mitchell did not give the money and such was the ferocity of fire to that point that both of you were in the end either unable or unwilling to persist. By the end of the fight Gardner had been hit once in each arm and at that point both of you fled from the bank with the one money case which you had managed to steal. It contained $150,000. From the door of the bank you both ran to the utility, one after the other. Coates drove and Gardner lay on the load area, seriously wounded and bleeding. You drove at speed to nearby Mulgrave Street and once there, Gardner ran immediately from the utility up a lane which leads from Mulgrave Street to Smith Street where the Commodore had been parked. Coates paused only long enough to set alight the utility with the furniture and the rifle and the shotgun in it and the revolver on the ground near to it and within the conflagration, and then started up the lane, at first forgetting to take the money with him. Then, realizing that he had left the money behind, he returned to the burning utility and grabbed up the money case, by then smouldering, before continuing up the lane to Smith Street to join Gardner. From there Coates drove the Commodore home to the house at 5 Loch Street [that is the house that had been rented for the purpose] with Gardner wounded and bleeding in the passenger seat beside him."

Gardner remained at the Yarraville house until about 29 January but became ill from the wounds he had sustained; and he then returned to his own home at Rye. At about the same time the Commodore was abandoned in a parking lot and an attempt made to set it alight with accelerant and a lighted newspaper. On 6 February 2002 Gardner was arrested near his home at Rye, apparently due to the DNA analysis of blood stains which had been found at the scene. He was admitted to hospital for treatment and then charged with the armed robbery of $150,000, the theft of the two motor cars, the attempted murder of Mr. Tabiaat and Ms. Mitchell, alternatively, conduct endangering life. Gardner made no attempt to deny that he had been guilty of the armed robbery or of the theft of the two vehicles. He admitted his participation from the outset but continued to deny that he was guilty either of attempted murder or reckless endangerment of the lives of the security personnel and maintained throughout the trial that the only weapon which he had carried was the sawn off shotgun which had not been fired. He said it was the other participant who had discharged the weapons; a participant whom, he said, was not Coates. It was evident from the whole of the material put before the jury that these denials were false, that Gardner was seeking to minimize his role in the robbery, and was falsely maintaining that Coates did not participate in the robbery and, by attributing the taking of the major portion of the proceeds of the robbery to the "other robber", was seeking to "cover up" the whereabouts of those proceeds.

Coates was even less forthcoming than Gardner. He maintained at all times that he had not participated in the robbery. On 10 February 2002 he surrendered himself to the police at Altona North Police Station, and reported that he had recently read a newspaper report about a 37 year old man being arrested in Rye with apparent gunshot wounds. He said that on the same morning a person whom he had described as a friend of someone from Rye (but did not want to identify) had come to his house and had told him that the police wanted to interview him. He was subsequently interviewed by the police on 26 February 2002, during the course of which he denied being present at, or involved in, the robbery. He denied being anywhere within the Kensington or Flemington region on the morning of 25 January 2002. He maintained this stance during the course of the trial although he gave no evidence. The jury did not believe him. He subsequently lodged a notice of appeal against his conviction but, prior to this hearing, he abandoned that appeal. He, too, has given no explanation as to the whereabouts of the proceeds of the robbery.

Having regard to the way in which the Crown had conducted its case at trial, and given the jury's verdict that they were both guilty of reckless conduct endangering life, his Honour proceeded to sentence on the basis that the jury had found that Gardner was the robber who carried the rifle and the revolver and had fired the shots, and that Coates was guilty of that offence by reason of being an aider and abettor, or by the application of the principle of common purpose. The sentencing judge regarded it as "significant" that Coates had not fired any shots.

In imposing sentence upon the respondents his Honour noted that the offence of armed robbery carries a maximum term of imprisonment of 25 years and concluded, rightly in my view, that the circumstances of this case were such as to place these offences of armed robbery "towards the more serious end of the scale". His Honour took the view, again correctly in my view, that these offences were "a premeditated, planned and heavily armed assault upon security guards in bank premises in a busy area of Flemington" and was a robbery which "was designed and it was executed in a fashion which placed Ms. Mitchell and Mr. Tabiaat in fear for their lives and so terrified them, that even today, they remain seriously traumatized by the experience". His Honour took the view that it was only by the "greatest of good fortune" that at least one of them was not killed or seriously injured, and that the respondents had created "a significant risk of injury to innocent people close by in the street during the course of the gun battle" as they fled from the bank. His Honour further noted that none of the proceeds of the robbery of $150,000 had been recovered and that neither had proffered any explanation as to the whereabouts of the vast majority of those proceeds. The judge assessed the actions of the respondents in carrying out these crimes as "a callous disregard of the safety and property of others ... for apparently no better reason than to enrich yourselves at their expense".

The trial judge said that the jury's verdict of guilty on the count of recklessly engaging in conduct which placed another person in danger of death represented a finding by the jury that the respondents "foresaw that it was probable that [their] conduct created a risk to the life of others and yet [they] continued regardless". Again, his Honour said, "the facts of this case also put that further offence towards the more serious end of the scale". The judge said that it was not easy to conceive of a more serious offence of reckless endangerment of life, "than deliberately and repeatedly [to fire] a .38 revolver at close quarters in the direction of another human being in the heat and excitement of a violent bank robbery".

Furthermore, the trial judge said - again correctly in my view - that the two counts of theft of which the respondents had been convicted were serious examples of the crime of theft in the sense that the cars had been stolen solely for the purposes of the execution of the robbery and had been destroyed and/or damaged following the robbery quite deliberately to avoid detection. As his Honour said:

"You caused property damage running to thousands of dollars and that at the time you could not have cared less about it. ... I consider that the way in which you took the vehicles and used and destroyed them demonstrated a contemptuous disregard for other people's property which warrants the court's denunciation."

In summing up the nature of this robbery and the effect upon its victims, his Honour made the following comments:

"The fact that the armed robbery was directed against a bank is a significant aggravating circumstance of that offence. It adds to the seriousness of the offence that it was so clearly planned and premeditated, high handed and audacious. It adds further to the seriousness of the offence that you chose to go armed with several loaded firearms. To carry a loaded firearm with the attendant danger of loss of life or serious injury is enough in itself to place the offence in the higher class of gravity. The fact that two of the weapons were fired and one of them repeatedly, makes it an even graver offence. Of even more importance still is the effect which your crime has had upon the victims, Ms. Mitchell and Mr. Tabiatt. Their evidence satisfies me beyond reasonable doubt that they were dramatically and adversely affected by your outrageous conduct and that they remain seriously traumatized by the incident. Ms. Mitchell's victim impact statement confirms that she is suffering profoundly. I treat the large size of the amount which you stole and your decision not to provide an explanation of the whereabouts of most of that money as still further aggravating circumstances. I do not overlook the fact that Gardner gave evidence at trial that the second robber was not Coates and that the second robber kept all of the money except for the $30,000 and that Gardner spent most of the $30,000 on a motor bike, since impounded by police. ... But I do not accept that there was someone other than Coates who kept the rest of the money. The jury rejected that version of events, by convicting Coates, and so do I. I proceed upon the basis that one or other or both of you intend to keep the remaining $120,000 and to spend it when you get out of gaol, or that you have already spent it."

Ultimately, his Honour sentenced the respondents as follows:

Theft of motor vehicles : One year on each count.

His Honour ordered that those sentences all be served concurrently and directed therefore a total effective sentence of eight years and fixed a period of five years as the non-parole period.

His Honour imposed sentences upon Coates as follows:

His Honour ordered that those sentences be served concurrently, reflecting a total effective sentence of seven years. Again his Honour directed that he serve a period of five years before becoming eligible for parole.

In fixing the sentences which he did in respect of Gardner, his Honour noted that the early pleas of guilty would ordinarily warrant a significant discount in the sentence to be imposed; but that matters in the case of Gardner were "complicated" by a number of factors including the fact that no explanation had been given about the whereabouts of the proceeds of the crime, that Gardner's implication in this crime was obvious from the outset and the fact that he continued to deny that Coates was implicated in the robbery. In respect of Coates his Honour noted, quite correctly, that there was no evidence of remorse because of his continued assertion that he was not involved in the robbery; and that therefore there was no question of any discount for a guilty plea.

His Honour referred at some length to the personal circumstances of the respondents. In respect of Gardner he noted that he had a criminal record extending back to 1989, mainly for offences of burglary and theft but, as his Honour said, the offending in this case "represents a quantum leap in terms of seriousness from earlier offences". His Honour referred to Gardner's early "dysfunctional family life" and his drug dependence which had contributed to the failure of his first marriage. Nevertheless, his Honour accepted that, since remarriage, Gardner had had the love and support of his current wife and the support of her children from previous relationships. He noted that Gardner was "above average intelligence" despite the absence of a formal education. He regarded the chances of rehabilitation for Gardner to be "good". His Honour appears to have accepted certain evidence which Gardner had given at trial that it was a primary reason for his participation in this robbery that he had previously had a motor accident in which he had damaged the motor bike of a member of a "bikers gang" and that the gang were threatening Gardner and his family unless he replaced that bike. It was for this reason that he had committed himself to purchase a bike worth nearly $30,000 which, as I understand it, was to be paid for with part of the proceeds of the robbery. His Honour's acceptance of this claim appears to me to have been very favourable to Gardner. Nonetheless, his Honour found that the evidence given on the plea on behalf of Gardner suggested to him that Gardner's chances of rehabilitation were considerably better than at any prior time in his criminal history, and that he would "like to think that you were telling the truth when you swore that you got no more of the stolen monies than the $30,000 which was spent on the motor bike". However, as his Honour said, he was unable to overlook the fact that Gardner had falsely sworn that Coates was not involved in the robbery and that the remainder of the stolen money had been taken by someone else.

In respect of Coates, his Honour accepted that he had come from a "talented and respected family", his father and grandfather being members of the medical profession. Coates, unlike Gardner, had been afforded the opportunity of a first class secondary education where he had matriculated and gained entry into the University. He had nevertheless "squandered the opportunities that had been afforded". His Honour accepted that Coates had exhibited over the years attributes of kindness and humanity towards members of his family, looking after his father after he had suffered a stroke, and devoted himself to nursing him. Likewise, when his mother had been diagnosed in more recent years as suffering from motor neurone disease, he had selflessly devoted himself to her care during the short period of time before her death. His Honour also noted that Coates had been dealt "a cruel blow" in 1992 when he suffered injury in a motor accident which had incapacitated him from working on a full time basis and had caused interference with other aspects of his life. Although, as his Honour noted, Coates had a criminal history extending back to 1984, it was of a "relatively minor nature". Nevertheless, as his Honour said, Coates had maintained throughout the trial that he was innocent, and continued to do so. However, he said:

"I count in your favour that you played a significantly lesser role in the robbery than did Gardner, and that the offences of which you have now been convicted are of an altogether different order of seriousness to any of the criminal conduct in which you have been previously involved."

His Honour assessed Coates' chances of rehabilitation as "fair" and he doubted that Coates would commit offences "of this kind" again in the future.

His Honour concluded by saying that the offences of armed robbery of the kind of which the respondents had been convicted needed to be deterred and that, therefore, there was a need for "significant punishment". Such sentences to be imposed on each of them needed:-

"to reflect the Court's denunciation of the kind of conduct in which you chose to engage and to provide general deterrence against the commission of similar offences by others. They need also to be sufficient to deter you from offending again."

His Honour noted that it might have been hoped that the periods of imprisonment which had been imposed on each of the respondents in respect of previous offences would have been enough to deter them from offending again; but, to the contrary, each had "now offended in ways which are far more serious than before". Thus, although his Honour was of the view that the chances of either of them re-offending in similar fashion were not "great", he nevertheless adjudged that there remained a need for some degree of specific deterrence in the sentences to be imposed. In the case of Gardner, his Honour said that he had taken into account his plea of guilty "conditioned though it may be by the circumstances to which I have already referred". He also allowed in Gardner's favour the difficulties and disadvantages which he had suffered in the past and the difficult financial circumstances in which Gardner had found himself at the time of these offences. He also took into account Gardner's chances of rehabilitation and "the punishment" which Gardner had in effect already suffered by reason of the wounds received in the course of the robbery. However, as his Honour said, "I am unable to put out of consideration that you haven't seen fit to disclose the whereabouts of some $120,000 of the $150,000 that was stolen." In the case of Coates, his Honour said that he had taken into account the fact that he did not fire any shots during the course of the robbery and the fact that, in effect, he had had only one previous conviction involving violence. He said, but for Coates obstinate refusal to take responsibility for his criminal conduct, he would have rated his chances of rehabilitation as good, but that he had to count against Coates his obstinate refusal to take responsibility for the offences of which he had been convicted and that he had not otherwise shown any remorse that the judge had been able to observe. Furthermore, it remained evident that he had benefited significantly from the robbery and intended to retain that benefit if he could.

His Honour said that the sentences which he proposed to impose for the offences of reckless conduct endangering life were "towards the lower end of the scale". He said that that was so because those offences comprised, in part, the elements common to the offences of armed robbery; and that the respondents were not to be punished twice for what was, in effect, the same wrongdoing. He said that it was only because of Gardner's plea of guilty that he was not proposing to cumulate any of the sentence which he was imposing for the count of recklessly endangering life, which he regarded as adding significantly to the gravity of the totality of the criminal conduct involved. However, his Honour said that he had taken the view that a total effective sentence of more than eight years would be excessive relative to the totality of Gardner's criminal conduct. Because his Honour considered that Coates had a lesser degree of culpability in respect of the offence of recklessly endangering life, it would be sufficient to order that the whole of the sentence of one year, which he was imposing for that offence, should be served concurrently with the sentence which he was imposing for the armed robbery. Likewise, his Honour took the view that the sentences to be imposed for the offences of the motor car thefts should be served concurrently with the sentences imposed in respect of the other offences even though, "on one view of the matter, they are discrete offences linked to the armed robbery only by the fortuitous circumstance that both vehicles were later used in the commission and get away from the robbery". Again his Honour said that:

"In any event I am of the view that in Gardner's case anything more than eight years, and in Coates' case, anything more than seven would be excessive."

The Director's appeal, in the case of each respondent, is on the ground that the sentence imposed on each count, the total effective sentence imposed, and the non-parole period, are manifestly inadequate. Various particulars are given of the alleged manifest inadequacy. Those particulars include the failure, in respect of the sentencing on each count, to adequately reflect the gravity of the offence; to adequately take into account aspects of general and specific deterrence; and the failure to order any degree of cumulation as between individual sentences.

In support of the ground of appeal taken in the case of each respondent, the Director submitted, in essence, that his Honour had clearly identified this armed robbery to be a very serious example of its kind, as was the offence of reckless endangerment of life; but that he had manifestly failed to fix sentences commensurate with the degree of criminality of the offending which he had found. Indeed, the Director submitted, the trial judge had clearly erred by saying that the sentences of eight years and seven years respectively imposed upon Gardner and Coates for the armed robbery, and as total effective sentences for the entire escapade, were the highest that could be reasonably imposed on each of the respondents for their criminal conduct and that anything more would render the sentences excessive. Although the question whether a sentence is manifestly inadequate is one which does not admit of much argument, Mr. Coghlan submitted that the sentences here imposed were so disproportionate to the gravity of the criminal conduct involved that this Court ought feel itself compelled to intervene in the interests of maintaining appropriate sentencing standards for these type of offences.

Mr. Holdenson and Mr. Tehan, who appeared respectively for the respondents Gardner and Coates, each submitted that there was no sound basis upon which this Court should interfere with the sentences imposed by the judge, either individually or as a total effective sentence. Each submitted that the judge had given very full and careful reasons for imposing the sentences which he did on each of the respondents and that it could not be suggested that there was any error of principle which vitiated his Honour's discretion in respect of individual sentences, cumulation or total effective sentence. There were, so it was submitted, identifiable circumstances of mitigation in respect of each of the respondents which the learned trial judge had taken into account. It was submitted that when those mitigating circumstances were measured against the circumstances of the offending, this Court - applying the principles relevant to the consideration of Crown appeals - should not conclude that the sentences which the judge imposed were manifestly inadequate.

For my own part, and notwithstanding the submissions advanced on behalf of the respondents, I agree with the Director that the sentences imposed by the trial judge are manifestly inadequate and will constitute an impediment to the maintenance of proper sentencing standards in this State if they are allowed to stand. The armed robbery was about as serious an example of that offence as can be imagined, short of one in which death or serious injury has been actually inflicted. It was planned, it was premeditated, it was callous in its execution, and it involved the use of weapons in circumstances which exposed the robbers' victims to the maximum prejudice - namely the firing of bullets into a confined space where the victims were trapped. It is remarkable in those circumstances that no one was killed or seriously injured; although, as his Honour noted, the ruthlessness with which this crime was executed has left an indelible mark on at least one of its victims.

In my view, and whatever one might say about the mitigating factors which his Honour found in respect of each of these respondents, the sentences imposed for the armed robbery offence alone fail manifestly to meet the gravity of the offending. His Honour was correct to describe the offending as being towards the higher end in the scale of armed robberies. Yet the sentences which he imposed do not reflect that fact; indeed they fall within the lower third of the maximum (25 years) which Parliament has set for this offence in this State.

I am also of the view that the sentences which his Honour imposed for the offence of reckless endangerment of life were manifestly inadequate. Again his Honour was correct, in my view, to regard this as a very serious example of the offence. Of course, as his Honour said, the offence partially overlaps the offence of armed robbery; but it adds an extra dimension to the latter offence because it involved - at least in this case - the discharge of firearms in circumstances where it could be foreseen that the lives of the security guards were endangered. In this respect, I cannot accept the proposition advanced by Mr. Tehan that, because it was necessary to fire the weapons in order to get the money, the offence of recklessly endangering life is totally subsumed in the offence of armed robbery; and that, therefore, any cumulation is inappropriate. In the circumstances I regard the penalties imposed of two years in respect of Gardner and one year in respect of Coates, as manifestly inadequate. Nor can I accept his Honour's conclusion that Coates' participation in this offence, and indeed in the overall offending, was significantly less than that of Gardner. It may well be that Gardner was responsible for discharging the weapons, but the evidence makes it very clear that he was doing so with the encouragement of Coates because each of them was yelling threats against the lives of the security guards at the time when the guns were being discharged. In the circumstances, the conclusion that Coates' participation in the offences of armed robbery and recklessly endangering life was "significantly less" than that of Gardner seems to me to be insupportable.

I have said sufficient to indicate that it is my view these appeals should be allowed on the grounds that the individual sentences imposed by the judge in respect of the counts of armed robbery and recklessly endangering life, are manifestly inadequate; and that the total effective sentences imposed upon each of the respondents are also, as a consequence, manifestly inadequate. Indeed, it seems to me that the sentences of one year's imprisonment in respect of each of the counts of theft of the cars, were very generous sentences having regard to the intention of the respondents that those cars should be destroyed for the purposes of concealing their identities and their participation in the armed robbery. Nevertheless, I would not be prepared to interfere with the imposition of those sentences on a Crown appeal.

I am, of course, conscious of the fact that "Crown appeals" are not to be lightly entertained or allowed. Sentences are, after all, products of discretionary considerations, and it is not for an appellate court to intervene in the exercise of the trial judge's discretion simply because it might have exercised the discretion in a different way. That is not what is meant, or implied, by the provisions of s.567A of the Crimes Act. The power which is invested in this Court on appeals by the Director is a power which is in aid of the public interest. It is unnecessary for me to revisit all the authorities which touch upon purposes which inform "Director's appeals"; they have been referred to extensively by the High Court in (inter alia) Malvaso v. R.[1] and Everett v. R.[2]; and by this Court in such cases as Clarke[3] and Bulfin[4]. Before this Court can intervene, on a Director's appeal, there must be clear error demonstrated in the original sentencing process which requires this Court's intervention in the public interest. In this case, the error asserted by the Director is manifest inadequacy of sentence, which is a conclusion that does not depend upon attribution of specific error; nor does it admit of much amplification[5]. That is the error which, in my opinion, infects the judge's sentencing discretion in this case; and which requires this Court's intervention to preserve proper sentencing standards in this State.

In re-sentencing the respondents, I am conscious of the restraints which are imposed upon this Court by the principles of "double jeopardy" which flow from the fact that the respondents are standing for sentence a second time in respect of the same criminal offending. Nevertheless I am of the view that the sentences for the armed robbery and the reckless endangerment of life, being manifestly inadequate in my opinion, must be increased if proper standards are to be maintained. For the purpose of re-sentencing I would propose to treat each of the respondents in the same fashion. True it is that Gardner pleaded guilty to counts 1, 2 and 3 on the presentment. Nevertheless he pleaded not guilty to counts 4, 5 and 6, and did so on the basis of a false claim that he was not the person who fired the shots; but that there was a person other than Coates (whom he was not prepared to name) responsible for that conduct. Unlike his Honour (although his views in this matter appeared to me to waver), I regard the attitude adopted by Gardner as indicating little remorse for the conduct in which he had engaged; and that his pleas of guilty to counts 1, 2 and 3 were little more than a recognition of the inevitability of conviction on those counts. The truth is that those pleas have done nothing to reduce the length of the trial, nor the anguish of the victims who were required to give evidence which, in part, was necessary to rebut the evidence of Gardner which, according to the jury's verdict, was perjured. The fact is that both Gardner and Coates have treated the court, and its processes, with contempt in the sense that each has adopted an attitude which has been calculated to conceal the whereabouts of the fruits of their robbery; an attitude which has been maintained to the present day. So far as other influential sentencing factors are concerned, it can be noted that Gardner is the younger man, but has a more serious history of criminal offending than does Coates. Gardner is entitled to have taken into account the fact that he was seriously injured during the course of the robbery and that those injuries are with him to the present day and render his life in prison, to some extent, more difficult than otherwise it would be[6]. On the other hand Coates, who is 10 years older than Gardner, has a lesser history of criminal offending than does Gardner. However, each of them, as it seems to me, played an equal part in the planning and execution of this robbery.

I would allow the appeals, set aside the sentences imposed below, and in lieu thereof impose sentences as follows:

I would order that one year of the sentence imposed upon count 6 be served cumulatively upon the imprisonment imposed on count 3. The total effective sentence, therefore, would be one of 11 years' imprisonment. I would direct that Gardner serve a minimum period of eight years before becoming eligible for parole.

I would direct that one year of the sentence imposed on count 6 be served cumulatively upon the sentence imposed upon count 3. Total effective sentence will, therefore, be one of 11 years' imprisonment. I would direct that Coates serve eight years before becoming eligible for parole.

Ground 2 of the Director's appeals was a challenge to the trial judge's failure to make a compensation order in respect of the stolen monies pursuant to s.86 of the Sentencing Act 1991. At the outset of the hearing of the appeal, the Director announced that he would not pursue that branch of the appeal. In my opinion, he was right not to do so.

A compensation order pursuant to s.86 is made in favour of a person suffering loss or destruction of, or damage to, property as a result of an offence. The application for the order may be made on that person's behalf by the Director or, if the

sentencing court is the Magistrates' Court, the informant or police prosecutor (s.86(5)(b)). (my emphasis). Section 86 (6) expressly provides that the Director, informant or police prosecutor is not required to make such an application.

Section 567A of the Crimes Act provides, by contrast, that the Director may appeal against the sentence if the Director is satisfied that an appeal should be brought in the public interest. (my emphasis). Although "sentence" is defined in s.566 to include (inter alia) any order made under Part 4 of the Sentencing Act,[7] a Crown appeal pursuant to s.567A is not appropriate for challenging a refusal to make an order under s.86. Such an order is made to compensate a person who suffers loss or destruction of, or damage to, property. To save expense and inconvenience, the Director is empowered to make application on that person's behalf. It is a summary procedure ancillary to criminal process. In a case of any complexity, it is usually better to leave the parties to their civil remedies[8]. Where the Director makes the application, it is made on behalf of the victims. The public interest is not engaged, or at all events not in the sense contemplated by s.567A[9].

I agree with the learned President that both these appeals should be allowed and in the sentences to be imposed on Coates. I would have shown more leniency towards Gardner. The important point is that these were bad examples of armed robbery and reckless conduct endangering life. Double punishment is to be avoided, especially as the robbery was of the first kind (use of force as opposed to threat of force) described in s.75(1) of the Crimes Act 1958, but the imposition of a substantial term of imprisonment on count 6 is still warranted[10].

I agree with Winneke, P., for the reasons he has stated, that the appeals should be allowed and the respondents re-sentenced as his Honour proposes.

[5] Dinsdale v. R. [2000] HCA 54; (2000) 202 C.L.R. 321 at 325-6 per Gleeson, C.J. and Hayne, J.

[6] cf. Barci & Asling (1994) 76 A.Crim.R. 103.

[7] These provisions are not free from difficulty. See, for example, Esso Australia Pty. Ltd. v. Robertson [2004] VSCA 79; R. v. Nousis [2004] VSCA 107.

[8] R. v. Braham [1977] VicRp 11; [1977] V.R. 104 at 107-111; R. v. Aitken [1981] VicRp 27; [1981] V.R. 241 at 245-246; R. v. Nousis, supra at [12].

[9] There may be a public interest in establishing proper principles for the exercise of the jurisdiction conferred by s.86, but the objects of s.567A do not extend so far.

[10] Compare Director of Public Prosecutions v. Adajian [1999] VSCA 105 at [29].

At a glance

Court

Decision date

Before

Source

Judgment (60 paragraphs)

Parties