Geddes v R

Proceedings on sentence 8In relation to counts 1 and 2, there was a dispute in relation to the factual basis upon which the applicant was to be sentenced. As these matters were critical to the principal ground of appeal, I shall set out the content of the disputed matters in some detail. In addition, I shall mention the circumstances underlying counts 3 and 4.

The non-contested facts may be summarised as follows: 9Count 1: At about 12.30am on 20 October, Kirk Crossley stole a motor vehicle from the driveway of a house in Lemon Tree Passage. Shortly thereafter he returned to his home at Medowie and met with Nash Cobb. Crossley and Cobb discussed committing a break and enter offence at the Tomago Bowling Club where they intended to steal an Automatic Teller Machine. At about 2.30am they drove to the Club and conducted surveillance of the premises. However at about 5.20am they were disturbed and they left and drove off. 10As Crossley and Cobb passed the Heatherbrae Pie Shop they agreed to rob those premises instead. At about 5.45am Cobb drove into the car park of the premises. Cobb and Crossley exited the vehicle and then entered the shop. They were wearing dark clothing and disguises. Crossley was armed with a screwdriver. 11Inside the shop the two offenders confronted staff and demanded money. Cobb armed himself with a kitchen knife and demanded the contents of the safe. The two offenders exited the shop having stolen $21,299. They decamped in the stolen vehicle. 12Immediately after the robbery Crossley telephoned the applicant and informed him that they had committed a robbery at Heatherbrae Pies. Crossley asked the applicant to monitor a scanner which was able to intercept the police radio frequency thereby enabling him to monitor the reaction and movements of police responding to the robbery. 13Count 2: At about 10.55pm on 5 November 2008 Crossley and two unknown offenders drove to the Hexham Bowling Club in a stolen unregistered motor vehicle. The three offenders entered the club wearing dark clothing and disguises covering their faces. One of the offenders was armed with a shortened single barrel shot gun and another with a long-handled screw driver. A staff member was forced at gunpoint to open the safe. The offenders stole $48,000 during the robbery and then fled in the stolen motor vehicle. 14Immediately after committing the offence Crossley telephoned the applicant. Crossley informed the applicant that they had committed an armed robbery at the Hexham Bowling Club and asked him to monitor the scanner and advise him of the reaction and movement of police responding to the robbery. 15Count 3: At about 12.30am on 5 November 2008 Crossley and two unknown offenders stole bottles of alcohol worth a total of $4,266.78 after smashing the front window of the Tea Gardens Cellars. On 17 December 2008, police executed a search warrant at a caravan owned by the applicant's parents and located seven bottles of stolen alcohol. On 19 December 2008 police searched the applicant's motor vehicle and located a further two bottles of stolen alcohol. The total value of the alcohol found in the caravan and motor vehicle was $245. 16Count 4: At about 10.25pm on 9 December 2008 Crossley and Rhys McKinley stole a motor vehicle. Shortly after midnight on 10 December 2008 Crossley was observed driving the stolen motor vehicle in a westerly direction on Ferodale Road, Medowie. A short time later the applicant was seen leaving 12 Maple Close Medowie and then driving in the same direction as the stolen motor vehicle. Police lawfully monitored telephone conversations between Crossley and the applicant. It was apparent from those conversations that the two met at Ringwood Road, Medowie and that the applicant helped Crossley and McKinley conceal the stolen motor vehicle. 17At around 1.30pm on 10 December 2008 the applicant drove Crossley and McKinley to the vicinity of Hexham Bowling Club in order to conduct surveillance. Following that the applicant returned Crossley and McKinley to 12 Maple Close, Medowie before returning home. 18At 4.50pm Crossley sent an SMS message to the applicant that read, "no wot u got to keep your mind on cuz!", an instruction to stay focused and remember what he had to do. 19A short time later Crossley telephoned his girlfriend and asked her to prepare clothing and retrieve a shotgun from outside in preparation for their return. 20Shortly before 10pm the applicant was observed leaving Maple Close, Medowie with Crossley and McKinley. A short time later Crossley and McKinley drove the stolen motor vehicle to Hexham Bowling Club. Between 10.25pm and 11pm police officers lawfully intercepted and monitored telephone calls between the offenders. It was evident from those conversations that it was the applicant's role to man the scanner and inform the others of any police presence or activity. 21At about 11pm Crossley and McKinley parked the stolen motor vehicle outside the Hexham Bowling Club. They were both wearing balaclavas and McKinley was armed with a loaded, shortened .410 gauge shotgun. They kicked open a door of the premises and confronted a male staff member. They demanded that he take them to the strong room where they stole $37,466. As they left the club they were confronted by police and subsequently arrested. 22The applicant was arrested shortly thereafter at about 11.30pm. A police search of the applicant's vehicle revealed the presence of a scanner. A search warrant was subsequently executed at the applicant's residence where another scanner was located. 23Form 1 offences: The first four offences on the Form 1 related to unsuccessful attempts committed on 8 December 2012 to steal a motor vehicle for use in the projected robbery at the Hexham Bowling Club. The fifth offence relating to the successful theft of the motor vehicle ultimately used in that armed robbery.

Contested facts: 24In relation to counts 1 and 2 the applicant agreed that he was an accessory after the fact by reason of his manning the scanner. The Crown, however, alleged that the applicant provided further assistance in relation to both those robberies. 25In respect of count 1 the Crown alleged that during a telephone conversation between Crossley and the applicant, that took place after the robbery at the Heatherbrae Pie Shop, the applicant agreed to meet Crossley and Cobb near the entrance to Wallaroo National Park for the purpose of providing transport to them after they had disposed of the stolen motor vehicle they had been using. The applicant then drove his own vehicle to the entrance of the National Park where he met Crossley and Cobb. The vehicles were then driven in convoy to a location within the National Park where Cobb and Crossley set fire to the stolen vehicle. Crossley and Cobb then entered the applicant's vehicle and the three men returned to Crossley's residence where the applicant was given $2,000 from the proceeds of the robbery as payment for his assistance. 26In respect of count 2 the Crown alleged that during the telephone conversation between Crossley and the applicant, that took place immediately after the armed robbery at Hexham Bowling Club, Crossley told the applicant that the stolen motor vehicle that he had been using had mechanical trouble and that he had been forced to stop. The applicant agreed to drive his own vehicle to a location at Tomago where he collected Crossley and the other two offenders. The four men then returned to Crossley's house where the applicant was given a sum of money from the proceeds of the armed robbery for his assistance.

The evidence at the sentencing hearing - disputed facts 27A document entitled, "Crown Submissions on Sentence" which set out the facts, including the contested facts, as asserted by the Crown became exhibit E (POS 28/1/11 p 1). The "Defence Bundle" of documents, which became exhibit 1, included a document entitled "Facts asserted by Crown on sentence with assertions disputed by defence marked". Within that document the contested facts had been marked by being struck through (POS 17.12.10 p 6). 28The Crown called Nash Cobb to give evidence during the sentencing proceedings. A statement of Mr Cobb, dated 10 June 2010, was tendered as exhibit D. Importantly, Mr Cobb's evidence related to count 1 only. He said that he was sitting beside Crossley when Crossley telephoned the applicant after the offence. During the conversation the applicant was asked to pick Crossley and Cobb up after they had dumped the stolen car at the National Park. The applicant was asked to meet them at the top of the Medowie turn off. 29Approximately 20 to 25 minutes after the phone call the applicant, who was driving a red Nissan Patrol four wheel drive, met them at the designated location and the two vehicles drove further into the park. After stopping the vehicles he and Crossley transferred a number of items, including a sledge hammer and the proceeds of the robbery, from the stolen vehicle to the applicant's vehicle. He and Crossley then set alight the stolen vehicle. They then entered the applicant's vehicle and were driven to Crossley's premises at Medowie. There they counted the money and divided it up. Mr Cobb was unable to recall if the applicant was given any money (POS 15). 30The applicant gave evidence. In respect of count 1 he denied meeting Crossley and Cobb at the National Park after they had committed the offence at the Heatherbrae Pie Shop and he denied returning with them to Crossley's residence. He also denied receiving $2,000 but said he did receive about 30-40 ecstasy tablets as payment from Crossley about a week later. To the suggestion that at some stage during the communications Crossley told him that he (Crossley) and Cobb had committed a robbery at Heatherbrae Pies the applicant said that he did "not quite remember" but it was possible that that happened. He denied that "during one of the telephone calls" Crossley said, "... we've just knocked over Heatherbrae Pies, what's happening on the scanner. Keep a listen out and ring us straight away if you hear anything". He "did not believe" that in one of the calls Crossley suggested that there was a need to get rid of the stolen car so that he would not be arrested in it and he denied that he made an agreement with Crossley to meet him on a fire trail in the National Park and then met him there. 31In respect of count 2 the applicant denied meeting Crossley and his co-offenders after they committed the armed robbery and then transporting them from that location. He also denied receiving a sum of money from the proceeds of the armed robbery. He did not believe that Crossley telephoned him after he had committed the armed robbery and told him what he had done. From at least around 2008 until the date of his arrest he was using significant quantities of ecstasy, ice and cocaine as well as significant quantities of alcohol. 32As will be apparent from my earlier remarks, there was no evidence led by the Crown to establish the facts it asserted in the dispute in relation to count 2.

The sentencing judge's findings 33In respect of count 1, her Honour was satisfied beyond reasonable doubt that the account given by Cobb was correct and that the applicant drove the two men away after the stolen vehicle was set alight. Her Honour did not find that the applicant received any cash proceeds of the robbery, as Mr Cobb could not recall it and the applicant denied it, although admitting that he had received some ecstasy tablets about a week later (ROS 3.1). 34In respect of count 2, her Honour said (at ROS 4.2): "The offender denied in his evidence that he provided transport to the offenders and that he was given any money for his assistance. However when tested in cross-examination he agreed that he did have a poor memory of the event due to his drug and alcohol use over this period. His evidence does not cause me to have a reasonable doubt about those parts of the facts that were in dispute." (Emphasis added)

The applicant's subjective case 35The applicant was born on 24 February 1981. He was 27 years old at the time of the offences and almost 30 years old when sentenced. A psychological assessment report from Ms Laura Durkin and a psychiatric report from Dr Olav Nielssen were tendered in evidence. 36The applicant was the fourth of five children and appeared to have had a relatively stable upbringing. He reported some conflict with his father when younger, although he was close to his mother. During childhood he was diagnosed with Attention Deficit Disorder and a learning disability. He reported to Ms Durkin that he struggled academically and socially whilst at school and that he truanted regularly. He reported that he never learned to read satisfactorily and that his writing abilities were limited. The applicant ceased schooling after finishing Year 9, following a period of having been home schooled by his mother. He worked in a number of unskilled positions for some years. He had been unemployed since the age of 25 and prior to his arrest he had been in receipt of a disability support pension. 37The applicant reported that he struggled socially for much of his life and that he had few friends. He had been involved in a relationship for seven years and he had a daughter from that union who was born in 2004. The relationship ended in October 2008, shortly before the commission of the offences. The applicant told Dr Nielssen that he met Kirk Crossley shortly after the break down of the relationship. He told Ms Durkin that Crossley had been an overwhelming support to him at that time and that at one time Crossley had found him unconscious after a suicide attempt. He told Ms Durkin that he felt he could not refuse Crossley's request to monitor the scanners because of the support Crossley had provided. 38On 21 November 2008 the applicant was admitted briefly to a psychiatric hospital with suicidal ideation. 39Dr Nielssen diagnosed the applicant as having a substance abuse disorder and a depressive illness as well as the possibility of an underlying psychotic illness. 40Her Honour was satisfied that the applicant's emotional state following the break-up of his long term relationship and his resorting to illegal drugs and alcohol as a consequence contributed to his involvement in the offences. The six week period over which the offences were committed represented "an unusual and alarming escalation in the applicant's involvement in serious criminal offences" (ROS7.4). Her Honour also found that the applicant's mental illness at the time of the offences lessened his moral culpability (ROS 6).

Ground 1: In relation to the sentence imposed for Count 2, there was no sufficient evidence upon which her Honour could find that the appellant had engaged in the conduct comprising the factual dispute in relation to that Count. 41The Crown concedes that the sentencing judge made findings of fact with respect to count 2 which were not open to her on the evidence presented. The Crown accepts that there was an obligation on the Crown to prove the contested facts in relation to count 2 beyond reasonable doubt. 42The Crown, however, noted that during the discussion on 28 January 2011 her Honour had remarked that the contested facts might only "marginally increase" the applicant's criminality. However, this Court has held on a number of occasions that considerable caution has to be exercised concerning remarks made during argument or discussion and prior to sentencing: see, for example R v Pham [2005] NSWCCA 94 at [11]; R v Thompson [2005] NSWCCA 340; 156 A Crim R 467 at 474-475 [32]. Such remarks do not have the force of carefully considered findings made following upon the conclusion of the submissions. It is the judgment of the Court which ought to be considered for this purpose, and not exchanges between the Bench and counsel during the course of submissions. In the present matter, the contested facts must have had a reasonably significant effect on the assessment of criminality. The sentence imposed and the degree of accumulation involved demonstrated that this was so. 43In my opinion, the applicant has made out this ground of appeal and it will be necessary for the Court to re-sentence him.

Ground 2: The learned judge erred in law in declining to take into account in mitigation that the appellant had spent over 2 years on remand prior to sentence 44I am not satisfied that this ground has been established. It is true that the applicant gave evidence that whilst on remand he had been "on some form of protection". Apparently this followed upon an incident where he had been set upon by other inmates. The evidence was very vague however. It seems that the small amount of detail provided indicated that his custodial situation was, as his counsel conceded, "obviously not the most restrictive". The evidence disclosed that the applicant was released from his cell between the hours of 9am and 3pm most days, and that he had contact with about sixty other inmates in his pod. He has been able to undertake courses and training, and work within the prison system. Protective custody may only be taken into account where there is evidence that the conditions of imprisonment will be more onerous: RWB v R [2010] NSWCCA 147; 202 A Crim R 209 at [192]-[195].

Grounds 3, 4 and 5: 45These grounds asserted that the sentence imposed in relation to count 1 was manifestly excessive; that the sentence in count 2 was manifestly excessive; and that her Honour erred in the accumulation of sentences imposed, resulting in a situation where the ultimate sentence constituted, in effect, totally cumulative sentences. 46In view of the finding I have made in relation to count 2 and of the need to re-sentence the applicant, it is not necessary to say anything about these grounds, other than that I do not consider that the sentence imposed on count 1 has been shown to be manifestly excessive. The maximum penalty applicable to count 1 is fourteen years imprisonment. The sentence imposed was a small fraction of the maximum penalty. None of the matters pointed to by the applicant in his submissions suggested that the sentence on count 1 fell outside the sound range of a proper discretionary exercise. 47In view of the need to re-sentence the applicant, it is unnecessary to determine ground 5. In my opinion, however, the process of partial accumulation adopted by the sentencing judge has not been demonstrated to be erroneous, assuming, however, that the sentence on count 2 was warranted. Because of the error involved, it will be necessary for this Court to reconsider the questions of accumulation and concurrency in the light of the totality principle and other relevant considerations.

Re-sentence 48In my opinion, an appropriate sentence for count 2, having regard to the seriousness of the offence and the applicant's substantial subjective case, is imprisonment for ten months with the sentence to be partially accumulated on the sentence imposed in count 1. 49The Court has received an affidavit from the applicant which suggests quite forcefully that he has made considerable efforts to improve his situation while in custody. He has worked hard to overcome his illiteracy and has been working as a leading hand in the kitchen for the last few months. He has completed the "Getting Smart" programme successfully and is undertaking the CALM programme at the present time. The applicant is hopeful that, upon release, he will be able to reside with his parents in Queensland and be supervised by Queensland probation and parole. He says that his parents have been very supportive while he has been in custody, and they have offered him the opportunity not only to live with them but to obtain work locally once he is back with them. 50If this arrangement does not work out for any reason, the applicant suggests that he may be able to live with his brother, his wife and their children in Mt Hutton. It is apparent that successful rehabilitation is within the applicant's reach, although it will require him to free himself from drugs and, if it is possible, to obtain some worthwhile and satisfying work. 51As did the sentencing judge, I would find special circumstances in the last sentence both because of the proposed accumulation of sentences, and because the applicant will obviously benefit from a longer period on parole under supervision. 52In relation to count 4, I take into account, as did the sentencing judge, the five matters on the Form 1. 53The consequence of all this is that the applicant should be re-sentenced as follows: Count 1: Imprisonment for a fixed term of 15 months to commence from 10 December 2008 and to expire on 9 March 2010. Count 2: Imprisonment for a fixed term of 10 months to commence from 10 August 2009 and to expire on 9 June 2010. Count 3: Imprisonment for a fixed term of 2 months to commence from 10 August 2009 and to expire on 9 October 2009. Count 4: A term of imprisonment consisting of a non-parole period of 2 years to commence from 10 June 2010 and to expire on 9 June 2012 with a balance of term 2 years and 3 months to expire on 9 September 2014. 54The total effect of sentence will now be one of imprisonment for 5 years and 9 months with a non-parole period of 3 years and 6 months. The applicant will be eligible for parole on 9 June 2012. 55The orders I propose are: (1) Extension of time for leave to appeal granted. (2) Leave to appeal against sentence granted. (3) Sentence imposed by the sentencing judge on 11 February 2011 be set aside and in lieu thereof the following sentences imposed: Count 1: Imprisonment for a fixed term of 15 months to commence from 10 December 2008 and to expire on 9 March 2010. Count 2: Imprisonment for a fixed term of 10 months to commence from 10 August 2009 and to expire on 9 June 2010. Count 3: Imprisonment for a fixed term of 2 months to commence from 10 August 2009 and to expire on 9 October 2009. Count 4: A term of imprisonment consisting of a non-parole period of 2 years to commence from 10 June 2010 and to expire on 9 June 2012 with a balance of term 2 years and 3 months to expire on 9 September 2014. 56HIDDEN J: I agree with Whealy JA. 57SCHMIDT J: I agree with Whealy JA.

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