10 His Honour imposed a total effective sentence of 6 years and 9 months. A non-parole period of 5 years was fixed and a declaration made regarding 481 days pre-sentence detention.
11 Two co-accused, Mark Maddalena and Donna Cooke, were also sentenced by the learned trial judge on the same day. Maddalena was sentenced to four years' imprisonment on each of counts 1 and 2, 18 months' imprisonment on each of counts 3 and 6 and 1 year's imprisonment on count 7. Orders of cumulation were made and a total effective sentence of four years and 10 months' imprisonment was ordered and a non-parole period of four years and 10 months' imprisonment was fixed. The second co-accused, Donna Cooke, was the appellant's wife. She was sentenced to two years and six months' imprisonment on count 2, nine months on count 4, one year on count 5 and one year on count 7. Orders of cumulation were made making a total effective sentence of three years' imprisonment, which was wholly suspended for a period of three years.
12 Before dealing with the grounds relating to the first proceeding, it is convenient to summarise the salient features of each count.
Count 1, armed robbery of the Eltham Hotel on 30 April 2001.
13 A vehicle was stolen from Tullamarine Airport, a fortnight before the robbery, for use in the commission of the robbery. In the early hours of the morning of 30 April 2001 the appellant, his co-accused Mark Maddalena and another man confronted staff with a firearm and a machete when the staff arrived for work. The staff were threatened, two of them were bound by the feet and wrists and their mouths were taped, while a third member of staff, after disarming the alarm system, was seized and taken to the strongroom and opened the safe which had a time delay. Whilst waiting, she was taken to the gaming room and opened a number of machines, from which money was stolen. They returned to the safe, by which time the first "brick" containing money in the safe was accessible. Whilst waiting for access to the next brick, she was again taken to the gaming room and further money was taken from machines. They then returned and accessed the second "brick" containing money. She was then gagged and bound. A total of $24,530 was stolen.
Count 2, armed robbery of the Lower Plenty Hotel on 17 May 2001
14 In the early hours of the morning of 17 May 2001, whilst staff were counting cash to place in the safe whilst under the protection of security guards, the appellant and Maddalena gained access to the premises with the assistance of one of the security guards. The appellant and Maddalena were armed with a cut-down single barrel shotgun and a black pistol fitted with what appeared to be a silencer. One of them yelled at the security guards to get on to the ground or they would shoot and "blow their heads off". Two members of staff were taken to the cashier's room. Money was taken from the safe and from cash drawers. The staff and the security guards, including the guard who was an accomplice of the robbers, were taken to the toilets and left there. The car keys of the accomplice were taken and his car was driven a kilometre from the hotel to where the appellant's wife, Cooke, was waiting in a car. She then drove the appellant and Maddalena away, leaving the accomplice's car there. Some $89,825 was stolen from the hotel. Both the appellant and Maddalena had previously worked at the hotel as crowd controllers.
Count 3, conspiracy to commit an armed robbery at the Sands Hotel, Carrum Downs
15 Between 17 July 2001 and 20 August 2001 the appellant and Maddalena agreed to carry out an armed robbery on the Sands Hotel, Carrum Downs. The conspiracy was detected in consequence of electronic surveillance, by telephone interception and by listening devices which recorded conversations between the appellant and Maddalena. Those conversations show that the appellant had made a number of trips to the premises to view its operations. He and Maddalena had discussed the details of the operating hours of the gaming room and bistro. The appellant said that all that was needed for the robbery to take place was the money needed to acquire the weapons to commit the armed robbery.
Counts 4 and 5, conspiracy between the appellant and Cooke to steal property belonging to Fresh 2 U Fruit and Vegetable Providers and to rob Fresh 2 U Fruit and Vegetable Providers
16 The appellant and Cooke, together with an employee of Fresh 2 U Fruit and Vegetable Providers and two other persons also recruited by the appellant entered into the conspiracy and performed overt acts in furtherance thereof between 13 July 2001 and 20 August 2001. The appellant had befriended the employee and, after gaining her confidence and extracting details about the banking arrangements of her employer, proposed that they would steal the payroll from the employee after it had been collected from a bank in North Melbourne. The theft was to be made to appear as a robbery. The appellant and Cooke carried out surveillance preparatory to the commission of the offence, and the date upon which the theft was to take place was agreed. On the day prior to the commission of the proposed offence, the employee informed the appellant that she would not be collecting the payroll on the following day and that another employee, who had no knowledge of the planned theft, would be collecting the payroll. The appellant and the other conspirators agreed to steal the payroll and thus conspired to commit a robbery. The appellant was to steal the payroll whilst Cooke would drive the car away from the scene and the other co-conspirators would drive another vehicle to a position which would effectively block any pursuit of Cooke's vehicle as it departed. The evidence of this conspiracy was obtained by the use of electronic surveillance, by telephone intercepts and the use of listening devices. Two of the co-conspirators undertook to give evidence against the appellant.
Count 6, conspiracy to commit armed robbery of the Ferntree Gully Hotel
17 Between 22 July 2001 and 20 August 2001 an agreement was made between the appellant, Maddalena, an employee of the Ferntree Gully Hotel and a fourth conspirator, to carry out an armed robbery of the Ferntree Gully Hotel. The appellant and Maddalena obtained information from the employee concerning the operating procedures of the hotel. The appellant and Maddalena attended at the hotel on a number of occasions to view its operating procedures. The appellant told the employee that he would receive $15,000 to $20,000 for assisting them by supplying the information they required. The evidence of the planning for this offence was again obtained by use of electronic surveillance, telephone intercepts and the use of listening devices. The electronic surveillance reveals the manner in which the appellant sought to control the employee and the appellant's intent to pursue the armed robbery once the necessary weapons were acquired.
Count 7, conspiracy to commit burglary of the Bayswater Firearms Exchange
18 Between 17 August 2001 and 20 August 2001 the appellant agreed with Maddalena and Cooke to burgle the premises of the Bayswater Firearms Exchange to steal firearms, in particular shotguns, for use in the commission of further offences of armed robbery. The appellant and Maddalena carried out extensive surveillance of the premises, examining methods of entry and the security systems that were in place. The appellant and his co-conspirators collected equipment necessary to carry out the offence and, at the appellant's instigation, Cooke hired a pair of metal bolt cutters from a rental business. The surveillance of the appellant reveals that there were discussions as to how the alarm system would be deactivated. Material was seized after the arrest of the conspirators which showed that a method had been devised to disable the external alarm system by filling it with quick-expanding foam which, when sprayed into the alarm cavity, would set and render the alarm system inactive. A short-range transceiver was purchased to enable one of the conspirators to be on look-out outside the premises but in communication with those inside the premises. Other equipment was seized which demonstrated the extensive planning which the appellant and his co-conspirators had undertaken.
First proceeding
Ground 1
19 This ground raises the contention that the individual sentences, the orders for cumulation, the total resulting effective sentence and the non-parole period that was fixed are manifestly excessive and in breach of the principle of totality.
20 In his reasons for sentence the trial judge described the armed robberies as very serious offences which had been carried after considerable planning and preparation. His Honour made reference to the steps which the appellant had taken to conceal his identity by the use of disguises in committing these offences. The use of loaded firearms, threatened violence and tying up of hotel staff and security guards, and the fear and trauma which they suffered and from which they continue to suffer, were features of these offences to which the trial judge rightly gave particular emphasis. His Honour referred to the victim impact statements of those staff and security guards who were the subject of threatened violence during the course of these robberies. It had been submitted on the appellant's behalf on the plea that he was concerned about the distress which had been caused to the victims of these offences. The trial judge observed in the course of his reasons for sentence that when the appellant came to give evidence during the course of the plea he did not say anything about this matter.
21 The appellant in the course of his evidence gave an undertaking that he would testify against other accused allegedly involved in some of the offences to which he had pleaded guilty, in accordance with the statement that he had made to investigators. His Honour took into account the undertaking given by the appellant in accordance with s.5(2AB) of the Sentencing Act 1991, noting in his reasons that the undertaking given by the appellant would result in the imposition of a less severe sentence. His Honour observed that the appellant had agreed to answer a limited series of questions suggested by the Crown but had made clear in the course of his evidence that he would not assist the prosecuting authorities save in the confined manner recorded in his statement. The Crown conceded that the evidence that the appellant undertook to give would be of limited assistance to it. His Honour acknowledged that as a consequence of the appellant's willingness to co-operate there would be a risk to his safety to which the appellant would be exposed in the course of his imprisonment. His Honour took into account the assistance which the appellant was prepared to offer the Crown and the fact that his sentence would be more arduous because of his willingness to co-operate with the Crown.
22 The appellant's outline of submission was confined to the contention that the sentences of 5 years' imprisonment on the two counts of armed robbery were manifestly excessive because of the appellant's pleas of guilty, his willingness to co-operate with police and his undertaking to give evidence against a co-offender, which would expose him to the risks associated with the service of a gaol term by an informer and the hardship of serving a sentence in protection. These arguments were but faintly pressed in the course of oral argument, however.
23 Armed robbery is a particularly serious offence because of the impact of threatened violence upon its victims and because the use of a weapon carries with it the risk of serious injury or death. An armed robbery involving the use of loaded firearms at secured premises, with a likely presence of security guards, increases the risk of serious injury or death in the course of the commission of the offence. The armed robberies committed by the appellant fell into this category. These are, as this Court observed in R v Williscroft,[1] offences of such gravity that they call for a "condign sentence". The high maximum sentence for such an offence has been viewed as indicating that deterrence is a matter that should be given priority.[2] Armed robberies which are carefully and professionally planned and executed must be viewed as more deserving of exemplary punishment.[3]
24 The sentence imposed reflects the fact that, were it not for the appellant's plea of guilty and his willingness to co-operate with investigators, a substantially higher sentence would have been appropriate. There is no substance in the contention that the trial judge's sentencing discretion miscarried because the sentences were outside the range. The trial judge, after careful consideration of the circumstances relating to each offence, the personal circumstances of the appellant and his prospects for rehabilitation, imposed sentences which cannot be viewed as high or harsh. The appellant received relatively lenient treatment, as the penalties imposed are at the lower end of the range.
25 No argument was advanced with respect to the orders for cumulation, the resulting total effective sentence or the non-parole period. There is no identifiable error in the trial judge's sentencing discretion. Ground 1 is not made out.
Ground 2
26 This ground, which was confined to the two counts of armed robbery, raises the contention that the sentences imposed infringe the principle of parity among co-offenders.
27 The co-accused Maddalena was sentenced to 4 years' imprisonment on each count and 3 months of the sentence on count 2 was made cumulative upon the sentence imposed on count 1. The co-accused Cooke was sentenced to two years and six months on count 2. Although the outline of submissions made reference to the disparity between the sentences imposed upon Maddalena and Cooke and the appellant, the submission made on the appellant's behalf was confined to an examination of the difference between his sentence and that imposed on Cooke.
28 On the plea on behalf of the appellant, no issue was taken with the Crown's suggestion that the appellant should be viewed as in the business of committing armed robberies at the time of these offences. The Crown invited the learned trial judge to conclude that whilst the appellant and Maddalena were the principal offenders who had planned and prepared the commission of the armed robberies and had planned other robberies, the appellant should be viewed as having played a pivotal role and that such information as Maddalena obtained was reported by him to the appellant. On the pleas of Maddalena and Cooke, their counsel - with some, understandable, diffidence - similarly invited the trial judge to conclude that there were grounds upon which to distinguish the appellant's role from their own and that they should be treated more leniently. Having regard to the evidence of the role played by the appellant in each of the offences, and the electronic surveillance, it is not surprising that counsel for the appellant on the plea did not take issue with the submissions that his was a pivotal role and that he should be viewed differently to his co-accused.
29 The trial judge did not consider that there were sufficient similarities between the positions of either of the co-accused and the appellant for parity of sentencing to apply, although his Honour did not differentiate between them as to their respective roles. Maddalena was suffering from a hypomanic bipolar disorder at the time of his offending. His Honour considered that both general deterrence and personal deterrence should be moderated because of his serious mental illness. Maddalena was 25 at the time of these offences and had no prior convictions.
30 The co-accused Cooke, who was 32 years of age at the time of the armed robbery, was married to the appellant and had been in a relationship with him for some nine years. They have a child who is aged four years. Cooke had two children from prior relationships, one of whom also resided with Cooke and the appellant. Cooke had been raised in foster homes and had been subjected to sexual abuse by a foster father and her brothers. A report from a forensic psychologist showed that Cooke suffered from residual chronic symptoms of post-traumatic stress disorder related to her childhood history of sexual abuse. She had a dependent personality disorder which the trial judge found made her vulnerable to the risk of re-offending. The trial judge found Cooke had prospects for rehabilitation because of her maternal obligations. The trial judge found that Cooke had played a considerably less important role than that of the appellant or Maddalena in the commission of the offences in which she was involved. His Honour found there would be exceptional hardship to Cooke's children if she were imprisoned and for those reasons imposed a wholly suspended sentence upon Cooke.
31 Counsel who appeared for the appellant on the appeal conceded that there had to be some discrimination by the trial judge between the sentences imposed on the appellant and on Cooke respectively, but submitted that the differences in the sentences imposed could not be justified. Counsel relied upon the fact that Cooke had prior convictions for dishonesty and had been involved in two of the conspiracy counts. It was submitted that the appellant was also a significant carer for the children and that it was the imprisonment of both of them that would create the situation of hardship for the children.
32 There was a marked difference between the respective roles played by the appellant and Cooke in the commission of the offences. His Honour's careful assessment of the differing personal circumstances of each of them reveals no error in approach. The differences in sentence of the co-offenders could not be said to be "unjustifiable" in the sense discussed by Mason J in Lowe v R.[4] His Honour was justified in distinguishing between the appellant and Cooke in the manner in which he did and in imposing the sentences which he did. No error in his Honour's sentencing discretion has been established. Ground 2 is not made out.
33 The appeal against the sentence imposed in the first proceeding must therefore be dismissed.
The contempt proceeding
34 Five days after being sentenced in the first proceeding, the appellant - as he had undertaken to do - gave evidence in the trial of another co-accused. On 8 September 2004, following his testimony, the appellant was convicted of contempt of court and was sentenced to a term of six months' imprisonment. The learned trial judge ordered that three months of that sentence be served cumulatively upon the sentence he was then undergoing. As noted earlier, the trial judge purported to fix a new single non-parole period, pursuant to s. 14 of the Act, of five years and three months' imprisonment. Unfortunately, his Honour fell into error in fixing a new single non-parole period, and this in turn led to error when sentences were subsequently imposed in the second proceeding.
The second proceeding
35 On 12 July 2005, the appellant was arraigned on a presentment containing a count of attempted armed robbery on 2 August 2004, a count of possession of an unregistered long-arm on 2 August 2004 (count 2) and a count of theft of motor vehicle number plates between 4 July 2004 and 2 August 2004 (count 3). He pleaded not guilty to the count of attempted armed robbery and guilty to the other counts. On 14 July 2005 a verdict of not guilty by direction was entered with respect to the count of attempted armed robbery. On the following day the trial Judge heard a plea in mitigation of sentence in relation to counts 2 and 3.
36 The maximum penalty for possession of an unregistered long-arm was two years' imprisonment and the maximum penalty for theft was 10 years' imprisonment. These offences were committed whilst the appellant was on bail awaiting trial in relation to the counts the subject of the first proceeding. Section 16(3)(c) of the Act was therefore enlivened. On 22 July 2005, the trial judge sentenced the appellant to 18 months' imprisonment on each count. His Honour ordered 9 months of the sentence imposed on count 3 to be served cumulatively upon the sentence imposed on count 2, making a total effective sentence of two years and three months' imprisonment. It was ordered that one year and three months of that sentence be served cumulatively upon the sentence the appellant was then undergoing, arising from the first proceeding. Pursuant to s.14 of the Act, a new single non-parole period of five years and six months' imprisonment was ordered to commence on that day.
37 Before turning to the grounds of appeal, it is necessary to make some reference to the circumstances in which the appellant came to be in possession of an unregistered long-arm and stolen motor vehicle registration number plates.
38 The appellant, having pleaded guilty on 13 May 2004 to the counts the subject of the first proceeding, was released on bail pending a plea for leniency. On 4 or 5 July 2004 the registration number plates the subject of count 3 were stolen by the appellant from a motor vehicle. On 2 August 2004 the appellant was apprehended by members of the armed offender squad in the car park of the Taylors Lakes Hotel. He was driving a motor vehicle which bore the stolen number plates, he was heavily disguised and amongst the items in his possession was the unregistered longarm. It was a fully loaded sawn-off double barrel shotgun. It was admitted on the plea that he had possession of the longarm and the stolen number plates for the purpose of committing an armed robbery on a Chubb Security van (this was the subject of count 1, on which the appellant had been acquitted by direction). Before sentencing the appellant on counts 2 and 3, the trial judge referred to the circumstances in which those offences had been committed. His Honour observed that the appellant had been engaged for some time in considerable planning to commit an armed robbery of a Chubb security van, which delivered money for automatic teller machines and also picked up money from the Taylors Lakes Shopping Centre and the Taylors Lakes Hotel.