MACKSVILLE EX-SERVICES CLUB
Sequence 3 in respect of Brown, Sequence 4 in respect of Dungay, specially aggravated break, enter and steal.
3. At 9.07pm on 5 October 2019, Chris Dungay, Wayne Dungay and Timothy White were in the Holden Rodeo driven by Chris Dungay. They had a rifle and other weapons in the car.
4. While driving through Kempsey, they discussed going to Nambucca Heads and Macksville and meeting Greg Brown. They further discussed changing clothes and shoes, having the gun in the car, and the danger of detection and taking backroads to avoid cameras.
5. After stopping at Chris Dungay's residence, where he collected his shoes, they stopped at the Caltex service station at South Kempsey at 10.10pm. Wayne Dungay is recorded on CCTV entering the store to pay for fuel and returning to the vehicle.
6. They collected Greg Brown at Bellwood Road, Nambucca Heads, at 11.01pm. As he entered the car, Brown said, "Got a fucking gun here, fuck you". They spoke of getting petrol and agreed to do it at Nambucca Heads to avoid the car being seen at Macksville.
7. At about 11.05pm, they arrived at the BP service station at Nambucca Heads. Brown filled up the car and went in to pay for it. White took over the driving.
8. At about 11.10pm, they stopped near Macksville Railway Station. They prepared themselves while inside the vehicle and are recorded saying, "… where's the bag …", "… throw some shoes on …" and "… there's a steel pole there with a hammer on it …" White asked Chris Dungay if he had a spare jumper in the car.
9. They continued discussing which roads to take to avoid the cameras and avoid being seen in town. As they entered Macksville, Brown directed White as to which roads to take to avoid cameras. They also discussed the best escape routes to drive out of Macksville afterwards.
10. At 11.25pm, they stopped at West Street, a couple of blocks from the Macksville Ex-Services Club. They discussed where to park and which road to take out. Brown pointed out the train station and told White to park on the other side, adding, "It's a bit of a run I reckon". They re-parked and stopped at Brunsdon Lane, a block further, at the train station. Brown said, "It's a perfect spot". Chris Dungay told them that Brown would be driving once they were finished because he knew the road.
11. At about 11.30am, they exited the car. Chris Dungay put his shoes on and asked Brown, "You know the way from here, hey, Greg?" Brown confirmed that he did. Chris Dungay said, "Bin bags and that in there, grab the bin bags and that…let's bash some motherfucker". He added, "There's a bag there for you". Brown said, "I'll run in with a butterknife". White said, "There's a steel pole there with a hammer on it". Chris Dungay said, "That'll do".
12. The four men arrived in the car park of the Macksville Ex‑Services Club at 12.10am. CCTV captured them walking around the car park and the nearby alley until 12.26am. At 12.27am, they walked up the ramp to the main door of the club and broke in by smashing through the bottom of the glass entry doors. They were armed with a longarm firearm, two machetes and a hammer attached to a long pole. They all wore facial disguises and had their hands covered.
13. Chris Dungay and Wayne Dungay were armed with machetes. Timothy White carried a duffle bag and a long-handled hammer. Greg Brown had the gun. At some stage, White and Brown swapped weapons and as they approached the bar area, White pointed the gun towards the bar.
14. The offenders searched the office at various areas of the club. Chris Dungay took a tin from the office area. The men ran out of the club at 12.30am.
15. A cleaner was present inside the club. However, he and the offenders were unaware of each other's presence.
16. At about 12.40am, the men returned to the car where they discussed getting nothing from the club. They commenced driving back onto the highway. Whilst travelling, they discussed how big the safe was inside the Ex‑Services Club. Chris Dungay said, "…I had the key to the safe in the envelope…" Wayne Dungay said, "I swear to god, lucky there was no-one in that office…I would've fucken [indecipherable] some motherfucker". White asked, "You got the ungae (pig Latin for gun) cuz?"
The conspiracy contained on the Form 1 - Sequence 2 in respect of Brown and Sequence 3 in respect of Dungay, "Conspiracy to commit robbery armed with a dangerous weapon".
17. As they left the Macksville Ex-Services Club, the four men discussed going to "Bucca". Wayne Dungay said, "There was still a lot of people in the RSL…big cunt." Chris Dungay asked, "Grego, what time does it shut over there…the fucking RSL?"
18. At 12.49am, Chris Dungay said, "Even if there's a couple of people in there, we're still going in". The tracking device indicates that at the time they were on the freeway, not far from Nambucca. Chris Dungay asked Brown if he reckons "The big ones" are shut.
19. Brown directed the way. He said, "Go right. This brings you down to the, um…bowling club". Chris Dungay asked, "There it is, there, isn't she…straight in". Brown said, "The bowling club". White said, "Where, uh, are we going, where, Greg?" Brown asked, "You wanna have a look to see if there are people and that down there first?" Chris Dungay confirms that he did and Brown then directed him to take a route which would enable them to see.
20. At this point, at 1.00am, the tracking device records the car as being in Nelson Street, Nambucca, behind the Nambucca Heads Bowling and Recreation Club. They discussed whether the fact that lights were on meant that the club was still open or whether the lights are left on overnight. Wayne Dungay said, "No, that cunt's open cuz, look…fuckin' oath". White added, "Yeah, that's open, ain't it Grego? They never leave them lights on, cuz".
21. They discussed where to park and drove around the block to West Street, parking near the end of Bank Street on which the club is located. Chris Dungay said, "What the fuck are we doing?" White responded, "Well let's go and check this place…come on…where's the ungae (gun)?" Movement and muffled voices can be heard as they exited the car.
22. After confirming the Nambucca Sports and Recreation Club was closed for the evening, their plan was abandoned.
23. Later in the evening around 2am, the car returned to the BP service station at Nambucca Heads. CCTV recorded Chris Dungay and Greg Brown exiting the vehicle. Chris Dungay was wearing the same pants captured in the Macksville footage. Brown paid for the fuel using his Commonwealth card.
24. Brown was arrested on 28 November 2019 at premises in Gunbayngirry Road, Bowraville.
25. Wayne Dungay was arrested on 28 November 2019 at premises in Yarravel Street. He was arrested for these offences and an outstanding warrant that was already in place. He refused to participate in an interview as was his right.
26. During the search of these premises, police seized a pair of Ecko brand pants as worn by Chris Dungay in the Macksville offence. They also located three bags of various calibre ammunition and projectiles, as well as a maroon pillow case.
- The offending clearly commenced as a joint criminal enterprise with the four persons concerned, in each other's company, recorded in the motor vehicle discussing and determining how they would go about committing the offence. The rifle, which was taken to the premises as part of the joint criminal enterprise, classifies as a dangerous weapon. In order to arrive at the Ex‑Services Club, they travelled on a number of backroads to avoid cameras, choosing specific locations to purchase petrol, planning escape routes, and when attending, they were wearing facial disguises and covering their hands. There was clearly at least planning from the time they came together in relation to all four of them, and in relation to Chris Dungay, Wayne Dungay and Timothy White, they were already in the motor vehicle together with weapons and disguises before picking up the offender, Brown.
- There is no evidence of planning prior to that time, although it is at least likely that there had been some discussion. I accept that there was an element of planning relevant to the offence, although as expressed by the Crown, it was unsophisticated. The offence intended to be committed at the Services Club was that of larceny, and I accept that it then falls at the bottom of the range of serious indictable offences relevant to s 112(3) of the Crimes Act when considering the objective seriousness of the offence.
- Also relevant, however, to the objective seriousness of the offence is not only the fact that they had a dangerous weapon, which is the specially aggravating feature, but that there were other circumstances of aggravation, being that, as previously referred to, they were in company, and a number of other weapons, being two machetes and a hammer attached to a pole, were taken with them.
- While there was damage to the property of breaking the lower glass panel of the entry door, there is no evidence of any other damage. In respect of the firearm, there is no evidence that it was loaded, or if loaded, capable of discharging a cartridge. It was entirely fortuitous in the circumstances that although then present in the club when they entered was a single cleaner in some other part of the club, that there was no interaction between the four offenders and the employed cleaner.
- However, it is clear from the items that were taken into the club that whatever observations they had made of the club from outside, they anticipated that there may be someone present in the club. Otherwise, there was no utility in taking the two machetes or the rifle. There is no evidence as to how the glass door was broken, but presumably, the hammer attached to a pole was used for that purpose, or perhaps the butt of the rifle.
- In respect of s 105A, being the definitions relevant to s 112 and the circumstances of aggravation, subs 2A provides:
"For the purposes of paragraph (f) of the definition of "circumstances of aggravation" , if there was a person, or there were persons, in the place in relation to which an offence is alleged to have been committed at the time it was committed, the defendant is presumed to have known that fact unless the defendant satisfies the court that he or she had reasonable grounds for believing that there was no one in the place."