R v Dickson & Ryan [2007] VSC 59

Supreme Court of Victoria|2007-03-09|Before: KING J

Armed robbery - informer's discount - sentencing of co-offenders, parity, sentencing submissions of the DPP.

1 Mark Ewan Dickson, you have pleaded guilty to two counts of conspiracy to commit armed robbery, one count of assisting an offender and one count of armed robbery, which occurred on 7 June 2004. The count of assisting offender related to the armed robbery, the subject of Count 2, which occurred on 8 March 2005.

2 Leonard Frank Ryan, you have pleaded guilty to two counts of conspiracy to commit armed robbery and one count of armed robbery which occurred on 8 March 2005.

3 The two counts of conspiracy to commit armed robbery are identical for each of you, occurring in respect of Count 4 between 12 and 24 May 2005 and Count 5 between 12 and 26 May 2005. You each have relevant prior convictions.

4 You, Mark Dickson, have a prior conviction for two counts of armed robbery and one count of theft on 21 October 1993 at the County Court at Melbourne, for which you received an overall sentence of six years with a minimum of three years.

5 You, Leonard Frank Ryan, have been convicted of dangerous driving in Sydney in 1990 for which you were fined and disqualified; 1991, also in Sydney, for malicious damage to property and placed on a good behaviour bond; in October 1991, 14 driving offences for which you received a combination of fines, community service and licence disqualification; and in November 1991, common assault, for which you were fined $200.

6 None of those matters are of any real significance in a matter such as this, but of real relevance is the prior conviction in February 1996 for one count of armed robbery and one count of theft in the County Court at Melbourne. You were sentenced to five and a half years' imprisonment with a minimum term of four years.

7 You, Mark Ewan Dickson, are now aged 45, having been born on 4 May 1961 and your occupation, when working, is as a driver.

8 You, Leonard Frank Ryan, are now aged 34, having been born on 10 September 1972, and a mechanic by occupation.

9 You were both residing at Unit 7, 618 Inkerman Street, Caulfield North, at the time of your involvement in these robberies.

10 In relation to the facts: Count 1 on the presentment relates to an armed robbery committed at the Dandenong shopping Plaza on 7 June 2004 at about 8.40 a.m. Two security guards, Mr Leek and Mr Liveslie left a Coles Supermarket located within that complex, having collected money from Coles and were returning to their armoured van which was parked at the entrance of the plaza near the Commonwealth Bank. As they walked through that large and busy shopping mall they were approached by two men, Mr Dickson and a person named by Justice Teague as PSB. You were each wearing dark clothing and a balaclava and carrying a firearm.

11 What occurred next is contained in the statement of Mr Leek. It says: "Two males aimed their shotguns at Simon and I and told us to get on the ground. One of the males was doing all the talking. I got down on the ground and was lying on my stomach. The male doing all the talking was standing over me aiming his shotgun at me. I felt the clip from my holster snap open and I moved my right arm to protect my firearm. The male said to me 'don't even think about it'. I felt the male take my firearm from my holster".

12 The man who took the firearm and was doing all the talking was you, Mark Dickson. This occurred in a busy section of the Dandenong Plaza Shopping Centre. It was observed by a great number of people, who would undoubtedly have been in great fear. There is no doubt, it was a well planned and well thought out professional armed robbery.

13 A third offender involved in the matter, who was also sentenced by Justice Teague, was PSA. His role was that of the lookout. His job was to observe the arrival of the guards and their movements, so that he might give you the word when to commence the attack, which he did from a coffee shop within the plaza itself.

14 The proceeds from that armed robbery were $185,420 and it appears that PSA received between $10,000 and $20,000 for his role as the lookout. PSB received some $60,000 with the balance going to you, Mr Dickson.

15 Count 2 on the presentment relates to an armed robbery committed on 8 March 2005 which occurred at the Blackburn North Shopping Centre. Two security guards, Mr Robert Crow and Erwin Kastenberger, were the crew of a Chubb armoured van, who were to deliver two satchels of money. Each satchel containing $162,000. They were delivering them to the Commonwealth Bank located in that shopping centre. Shortly before quarter to one, the armoured truck stopped outside the doors of the shopping complex. Mr Kastenberger removed one of the satchels which were to be taken in from the van, one at a time, and he walked into the shopping complex. He was followed eight to ten feet behind by Mr Crow and as Mr Kastenberger approached a corner, which led to the Commonwealth Bank, two men being, you, Leonard Ryan and the other being Hugo Rich, came from a corridor leading from a toilet yelling, "on the ground, on the ground". You were both wearing balaclavas and fluorescent worktops. Each of you carried a handgun. Both guards went to the ground. The money was passed over. One shot was fired by Hugo Rich and Mr Kastenberger received a single gunshot wound to the chest, that caused his death. The satchel containing $162,000 was taken by you and Rich. Once again, this armed robbery occurred in a busy shopping complex in full view of very many people, including school children from a nearby school. Once again, there was a third person involved in this armed robbery and it was PSC. His role was as the lookout. He sat in the stolen van and watched the armoured van arrive and gave the signal to both Rich and you, Ryan, to proceed with the armed robbery. After the robbery, PSC drove to Greensborough and abandoned the stolen van. He threw away his scanner and a mobile phone that had been used to communicate with you, Mr Ryan and Mr Rich, during the course of that armed robbery.

16 From the material in the depositions and his statements, it is evident that he had become aware that a shot had been fired and that the Homicide Squad were involved and he drove away and ended up in Greensborough, which was not part of the original plan.

17 Later that evening he met with you, Ryan, and together you went to where the two stolen vans used had been dumped and attempted to destroy them by fire, to eliminate any evidence that may have led back to the involvement of any person in the armed robbery. You were successful in relation to one van, but only partially successful with the second van.

18 You claimed, Mr Ryan, that Mr Rich took most of the proceeds of that armed robbery and invested it in a company without your permission. I am unable to say at this stage whether or not that is true. But whether you received your share of the proceeds of this crime has no real relevance upon the sentence that must be imposed. It would make little difference if the guards you attacked had been carrying only $10. The crime you committed is what must be punished, not the amount involved in that crime.

19 In relation to Count 3, that of assisting an offender, the scenario is, that on that day of the armed robbery, to which I have just referred, you, Dickson, had gone to Ballarat and made sure that you were seen and traceable in the area on that day.

20 On 13 March 2005, police attended at the flat that you and Ryan shared in Inkerman Street, Caulfield North. You made a statement to police on that day stating that Ryan was with you in Ballarat on 8 March 2005. By letter dated 17 March 2005 from a solicitor, who purported to act for Mr Ryan, an unsigned statement alleged to be made by Ryan was forwarded to the Homicide Squad. The statement is in similar terms to the statement made by you, Dickson, on 13 March. When ultimately questioned about this in your record of interview of 26 May 2006, you admitted to police that Ryan was not with you in Ballarat but said you had no knowledge of the armed robbery and the shooting that had occurred on 8 March 2005, at the time of providing the alibi. You said you provided the alibi to Ryan simply because you were aware of Ryan's prior record and that he needed or wanted an alibi.

21 It is clear, in my view, from the other depositional material that you were well aware at the time of making that original statement of the armed robbery and the death that occurred during that crime. So the statement, in my view, was not made in ignorance of the crimes and your plea of guilty is a clear acceptance of that proposition.

22 As to Count 4, you both agreed with PSC to commit an armed robbery on a Brinks Australia van at Waverley Gardens. You two being the persons to physically commit the offence and firearms which were to be used by each of you. PSC was to be the lookout. On 24 May 2005, the day of the proposed armed robbery, PSC met with you both in Dandenong. You all went and hired a Holden Calais sedan to be used in that armed robbery. A Honda sedan that had earlier been stolen was left in the Springvale area whilst you dropped PSC in the Dandenong area using the hire car. You all agreed to meet at about 7 p.m. You met with PSC as arranged, driving the hire car, went to the Springvale area to pick up the stolen Honda. PSC's role was to take the hire car to Brandon Park Shopping Centre and wait for a Brinks armoured van to arrive and to notify you of that fact. You were going to commit the armed robbery at the van's next port of call, Waverly Garden Shopping Centre. Once again, a large and public shopping centre.

23 At about 9.30 p.m. you both met PSC at Brandon Park, told him that there was going to be a change in plan, which related to the use of an additional stolen car. Shortly after 10 p.m. PSC reported to you, Ryan, that a Brinks van had arrived at Brandon Park and you said that you were ready to go. However, the armoured van did not arrive at Waverly Gardens that night and by midnight the job was called off.

24 Count 5 is a count of conspiracy to commit an armed robbery on the crew of a Chubb armoured van at Dandenong Plaza on 26 May 2005, and it is at that time that you, Dickson, PSC and PSB were arrested.

25 On the evening of 25 May 2005, the day before the proposed armed robbery, PSC met with you, Dickson, in South Yarra and you drove to a motel in Chadstone where you discussed the proposed armed robbery and it was agreed at that stage that it would physically be committed by PSC and you, Dickson, and that PSB's part was to be the lookout. PSB had been approached some time earlier by PSC to perform this role.

26 On 26 May 2005, the three of you met in the Dandenong area at about 11 a.m. You, Dickson, gave PSB a mobile telephone. PSB drove to the main street of Dandenong and waited near the ANZ Bank where he was to keep watch for the Chubb van until its arrival at the bank and then to telephone Dickson, using the mobile phone. Whilst PSB drove to the vicinity of that ANZ Bank, you, Dickson and PSC, drove to Potter Street, Dandenong, where you collected the green sedan that had been stolen earlier to use in the previously planned armed robbery and placed that at the exit of the plaza car park in readiness to be used as a getaway vehicle from the armed robbery.

27 You, Dickson and PSC, then waited in the hired Calais sedan at another location within the plaza. PSB telephoned you, Dickson, and informed you that the van had arrived at the ANZ Bank and PSB was instructed by you to travel to the Commonwealth Bank in Lonsdale Street, Dandenong, and there wait and inform him when the Chubb van had passed that position.

28 Whilst waiting at that location, PSB received a call from you, Mr Ryan, who enquired as to what was happening. Unbeknown to any of you, at that stage, you were under police surveillance.

29 Dickson and PSC, whilst PSB was in the vicinity of the Commonwealth Bank drove to the Bunning's Warehouse car park some two to three kilometres away and changed their clothing in preparation for the armed robbery, and it was at that location that you were arrested by the police. In the car were two loaded handguns, ammunition, a mobile phone, balaclavas and disposable gloves. The handguns were a 9 millimetre Walter and a .357 calibre Magnum revolver. Neither of those handguns had been used in relation to the murder of Mr Kastenberger. That firearm has never been located.

30 PSB remained unaware of the arrest that had taken place and remained in the Dandenong area for some hours waiting for a contact from either you, Dickson or PSC. During this time he received two telephone calls from you, Mr Ryan, which revealed that you knew with particularity how the armed robbery was to be committed and that you were concerned for Dickson because of the delay and lack of contact from Dickson and PSB.

31 As the Crown submitted, in part, because Dickson "had all of your gear and stuff" in relation to the armed robbery that was due to have occurred. Later, you, Ryan, instructed PSB to go in search of Dickson and PSC and suggested, perhaps, to go to the local police station to see if there was any activity there. Whilst he was doing that, members of the Special Operations Group arrested him.

32 The Crown submitted that your role in relation to this, Ryan, was that you provided material to Dickson, probably phones, to be used in the armed robbery and that you were to use a mobile telephone to establish an alibi for Dickson, very much in the same way that had been done earlier in relation to Count 3. I accept that submission.

33 In your record of interview of 26 May 2005, Mr Dickson, you admitted your role in the conspiracy to commit the armed robbery that you had been arrested for and you sought to distance Mr Ryan from that conspiracy. The first person arrested, who was involved in this matter, was Hugo Rich on 12 May 2005. At that time, he was not arrested in relation to this matter, but some other dishonesty offences. It was not until later, through the statements of the co-offenders, particularly that of PSC, that the police became aware of the involvement of Hugo Rich in the murder and armed robbery involving Mr Kastenberger. As I said, on 26 May 2005 PSB, PSC together with you, Mr Dickson, were arrested; then, following that, PSA on 31 June 2005; and finally, you, Leonard Ryan, on 22 June 2005.

34 As a result of their arrest, PSB and PSC admitted their involvement in that armed robbery, the armed robbery that was to be committed on that date and the other offences that had been committed by them prior to May of that year. In the case of PSB, he confessed to his involvement in the armed robbery of 7 June 2004, which is Count 1 on the presentment and subsequently made a statement in June 2005 about his conduct and that of his co-offenders. He waived his right to committal and pleaded guilty on 24 August 2005 before his Honour, Teague J. PSC confessed in records of interview and made statements concerning his prior offending, which included the matters which are the subject of Counts 2, 4 and 5 on the presentment and, like PSB and PSA, he pleaded guilty on that same day before Teague J.

35 It was as a result of the information provided to investigators by PSB and PSC that PSA came to the attention of investigators. He was arrested and interviewed and he confessed in his record of interview in relation to the armed robbery, the subject of Count 1 on this presentment, and he also made a statement to the police concerning his knowledge of his co-offenders and, likewise, he pleaded before Teague J early. PSB, PSA and PSC on their pleas gave undertakings to give evidence in accordance with their statements and those statements form part of the depositions.

36 You, Mark Dickson, were interviewed in relation to Count 5 and had made admissions to that offence. You were further interviewed on 6 June 2005 concerning your involvement in relation to Count 1 on the presentment and made a "no comment" record of interview. As a result of the matters which PSC revealed to police, Mr Hugo Rich was charged on 17 June 2005 with the murder of Erwin Kastenberger.

37 On 22 June 2005 you, Leonard Ryan, surrendered yourself to police by arrangement and made a "no comment" record of interview. You were charged with a number of offences including the murder of Erwin Kastenberger.

38 On 25 September 2006, you, together with Hugo Rich, were due to face a contested committal proceeding. However, these proceedings were adjourned until March this year as a result of the conduct of Mr Rich. It appears some negotiations had been going on previously, that is, earlier in 2006, but it was after the adjournment of the committal proceedings, in fact on 7 December 2006, that you, Ryan, made a number of statements to investigating police concerning your involvement in the offences and the involvement of others. At the time of making those statements you had been housed with both Dickson and Rich and you needed to be moved. Shortly after your removal from the Metropolitan Remand Centre, police approached you, Mr Dickson, to see whether you would also make statements and statements were made by you on 14 December last year. Each of the statements made by you were induced statements.

39 You have each given evidence before me as to the truthfulness of those statements and you promise to give evidence in accord with those statements at the committal hearing and the trial of Hugo Rich for the armed robbery and the murder of Mr Kastenberger.

40 The evidence that you, in particular, Mr Ryan, can give in relation to the involvement and responsibility of Hugo Rich, for the murder of Mr Kastenberger, is of a high level. Whilst yours is not at the same level of importance, it is my view that you, Dickson, can also give some relevant evidence of participation by Rich, at least, in the armed robbery, and all of this confirms the evidence that PSC is able to give about Rich.

41 The law says that it is important that co-offenders are to be encouraged to plead guilty and give evidence against other participants in the crime. This is done by the courts reducing the sentence that they would otherwise impose on those offenders, in return for that cooperation. I do intend to give you a discount for your cooperation to date and also for the cooperation and the evidence that you will give, both shortly and in the future, against Hugo Rich.

42 In relation to your roles in the armed robbery and who were the instigators and agitators for the commencement of these offences, I am unable to make any decision as to who instigated these armed robberies. As I am required to be satisfied beyond reasonable doubt on any findings that I make that are adverse to you on sentence.

43 Justice Teague, when sentencing your co-offenders, PSA, PSB and PSC, found that you two were the instigators and that you had caused those other persons, without any significant prior convictions, to fall in with your plans as they were in need of money. At that stage, his Honour had only the statements of those persons as evidence before him as neither of you had made the statements that have been presented before me. As a result of the statements, that area of the material is now challenged and none of you have as yet been tested on your oath and, accordingly, I remain unable to determine who were the original instigators. What I can be satisfied of are the roles that you each played in the robberies, which I have already articulated. I can equally find that each of you was well aware of the seriousness of the offences in which you were participating as each of you had served a substantial period of time in prison for the same types of offences.

44 Whilst it is more probable that you, with your knowledge and experience of armed robberies in the past and your connections from time in prison, would be the instigators. I am, as I say, unable to be satisfied to the requisite standard and do not treat this as an aggravating feature. I do treat as an aggravating feature, in respect of Mr Dickson, that the guns were loaded at the time of your apprehension, for the final count on the presentment, the conspiracy to commit armed robbery, and that you, Mr Ryan, had been involved in the sourcing of ammunition for those firearms, according to the statements.

45 The maximum penalty for Counts 1, 2, 4 and 5, armed robbery and conspiracy to commit armed robbery, is 25 years. The penalty for Count 3, assisting offender, is five years' imprisonment.

46 I have received victim impact statements from Robyn Lee Kastenberger, Mark Kastenberger, Joseph Kastenberger, Rita Kastenberger, Robert Crow, Jonathan Leek and Mr Liveslie. The Kastenbergers being, the wife, child, brother and sister-in-law of the security guard who was so needlessly killed in the armed robbery. Mr Leek and Mr Liveslie were the two guards involved in the first armed robbery, and Mr Crow was Mr Kastenberger's partner at the time that he was murdered. I have read those documents and I will take the contents into account, when imposing sentence.

47 In relation to those of Mr Kastenberger's family, there is a limited manner in which I am permitted to use them, as neither of you are charged with his murder and it is, of course, the loss of Mr Kastenberger that so sorely grieves them. I would hope that you have actually read those statements yourselves so that you might have some insight, no matter how limited, to the destruction and harm that your greed has caused to some of the lives within this community. Nothing I can do in imposing sentence can in any way compensate any of those people for the damage and pain that they have had to endure.

48 I find that the offences in which you both participated were, despite any denials to the contrary, well planned, professional and audacious armed robberies and conspiracies to commit armed robberies at the highest level. They were to be carried out in shopping centres which would be full of mothers with their small children, elderly persons out and about shopping, school children from the area, business people doing shopping and members of the staff of various businesses, all going about their ordinary day to day activities. The guards who were carrying the money either to or from those businesses would be at their most vulnerable, with so many members of the public about unable to really protect themselves or use their weapons that they legally carry to prevent such robberies occurring.

49 The amounts of money that you were pursuing were large. These were crimes of greed, and despite the death of Mr Kastenberger, neither of you were deterred from becoming or attempting to become involved in another two robberies of a similar type. At the time of your arrest the guns that were being carried were loaded and ready to be used. It makes it infinitely more difficult to accept that you all had or believed that you had unloaded guns in the armed robberies that had been committed earlier. Accordingly, as I said, it is my view that these offences are up towards the highest level of offences of this nature.

50 There are many factors that I have to take into account in imposing sentence upon you both. One of those factors is general deterrence. The community, quite rightly, feels that it has a right to be safe and protected whilst going about their day to day activities, such as shopping in these large suburban centres. Equally, those employed as security guards do not expect to be gunned down whilst doing their jobs of delivering or picking up money. Even if the guns had not been loaded, as is claimed in respect of the first armed robbery, those who were witnesses and victims of these crimes are unaware of that fact. The job looks professional with firearms, balaclavas, gloves, and a lookout, all of that can only engender great fear and apprehension in both the victims and the onlookers. The community confidence is greatly damaged by illegal activities of this nature and accordingly, as I said, there is a strong need for general deterrence. To ensure that those who wish to indulge in these crimes realise that, if caught, there will be a high price to pay for their involvement.

51 Equally, I have to take into account your personal circumstances as part of the process of sentencing. You, Leonard Ryan, are now aged 34. You were born in Melbourne. Your parents separated when you were aged 4 and your father, it appears, was a violent alcoholic who used to beat your mother. You left Melbourne with your mother and went to a Sydney refuge.

52 Your mother ultimately re-partnered and had two more children, with whom you are described as having a positive relationship. You attended, initially, at Willoughby Primary then Flemington West Primary, but you then had problems with your step-father and between the ages of 7 and 9, you came back to live with your father in Melbourne.

53 When you were about 9 your mother came back to Melbourne and returned you to her custody and you went back to Sydney. You went to Chatswood Boys and Girls High and you left prior to Year 10. You commenced an apprenticeship as a mechanic. You did not complete that course, you completed some three out of the four required years. You then had an assortment of jobs in the fitness and hospitality businesses. You have been a heavy user of alcohol for most of your adult life. You have been treated for depression, including attending a psychiatrist in 2004. Your depression has been such that there has been a CAT team called out when you have demonstrated suicidal behaviour. You have had a series of partners, none of which have been substantial and there are no children as a result of any of your relationships. One of the other children of your mother has mental instability and, when he comes to Melbourne, you will usually look after him. He suffers from schizophrenia and learning difficulties.

54 Evidence was given on your behalf by Detective Sergeant Ron Iddles of the Homicide Squad, who indicated that, in relation to the prosecution of Hugo Rich, your cooperation was vital. He also said that such cooperation has placed you in danger within the prison system. Mr Rich is well known in terms of being a difficult person to deal with within the prison system and sometimes very hard to control. I accept that.

55 Your sentence, once you were determined to assist, has been accordingly, from that time, served in quite harsh conditions, including virtual solitary confinement and you are released from your cell for very limited times of the day, together with limited contact with others in the system. It is difficult to say precisely how and where you will serve your sentence, but I accept that you will serve it, both of you, in a harsher system than most prisoners who are sentenced.

56 He also gave evidence, during his discussions with you, that you had actually shed some tears and asked him to pass on to Mrs Kastenberger your deep regret at the loss of her husband. He stated to the Court that, despite his long experience, you are the only person he has ever dealt with who has ever offered an apology and asked that it be passed on.

57 In relation to your personal history, Mr Dickson, you are 45, having been born in Melbourne in the Frankston area. Your mother was a teacher and your father worked for the Board of Works. When you were aged about 14 your parents separated. Counsel submitted to me that you in fact have ongoing contact with your mother, although I note from the psychiatric report of Warren Simmons, tendered on the plea, that you have had no contact with her since your incarceration on this occasion. You have three sisters aged 50, 48 and 43 and you see one quite regularly, as I understand it, the youngest.

58 Counsel said there was nothing untoward about your childhood, you were not in trouble at school, you basically had a fairly normal upbringing. You attended Peninsula Boys Grammar until Year 10, then Frankston TAFE for Years 11 and 12. You left school just before the conclusion of Year 12. You had a fairly consistent work record. You commenced with the National Australia Bank, worked up to the position of a teller. You then became interested in computers and you ended up being employed by BP Australia, initially as an accounts receivable clerk and you worked your way up to managing leases for all petrol stations in Australia. You wanted to do more in computers and you went to Elders. You were retrenched after 18 months and that was as a result of the company being sold. You moved to State Insurance in 1992 and it was around this time that you committed your first offence and spent the next three years in prison. No details were actually provided to me in respect of the previous offence, so I cannot elaborate on that. Since the time of your release, you have worked at different jobs, such as the driver collecting supermarket trolleys, sales rep, collecting spare parts. Equally, you have had long periods of unemployment. You had a serious relationship first, when you were aged about 24 which ended. Then in 1989 you married Jasmine, a Lebanese woman, who became pregnant quickly into your relationship and that is what prompted the marriage. You described the marriage to your counsel and to the psychologist as never being very happy. To the psychologist you indicated that if she had not been pregnant you would have walked away from the marriage after two months. You have two children from that marriage and you describe a good relationship with your daughter and your son. Your daughter is 16, your son is 9 years old. Your wife, apparently, stayed with you throughout your imprisonment, but after your release it was difficult. You finally separated in June 2004 and you continue to have phone contact with your children. Your ex-wife is not prepared to bring the children to visit you in prison. There is no history of alcohol or substance abuse or dependence. You left your wife at the time almost immediately after the first armed robbery.

59 Your counsel, during his plea, posed the question of "How did you end up in armed robberies?" It was submitted that it was clearly partly to do with the company that you kept, in that you were always in company with others when offending. It was submitted that you now recognise the group with whom you mixed was a problem. You had all known each other for some time. There is also a report from Mr Simmons, to whom I have already referred, which indicates that you are now suffering from post traumatic stress disorder and depression, although they were not factors at the time of the offending. It was submitted further by your counsel that your need for money related to your need to escape the marriage, in which you had been so unhappy.

60 In relation to the sentencing matters, counsel for the Crown submitted, in relation to these offences, that the directorate considered the matters and determined that, although it was unusual, in these particular circumstances, it was appropriate for the director to make submissions as to the actual sentence that the Court should consider imposing. I am not entirely confident that it is appropriate as it tends to give an offender a real expectation that such a sentence, as suggested by the director, will be imposed.

61 Whilst accepting that the director has the right to make such submissions, the latter aspect of legitimate expectations by the offenders cause me a great deal of concern. Here the director suggested that an appropriate sentence to be imposed in respect of Ryan, would be between the vicinity of six years with a four year minimum or seven years with a five year minimum.

62 In respect of Dickson, the Crown did not actually put forward any figures, which I find a little inconsistent, but did submit that the information that he had provided was not of the same comparative worth as that of Ryan. That is correct, but the difference is that he was not participating in the armed robbery with Rich and was not present when he allegedly shot Mr Kastenberger. He can, however, place Rich as having involvement with Ryan and being around at the time of the armed robbery and potentially having some involvement in it. I would presume that the case against Rich will be partially circumstantial and partially direct, with the evidence of PSC and Ryan being the direct evidence, and others such as Dickson combining to make the circumstantial aspects of the case.

63 I have to balance the overall offending with all of the factors to which I have earlier referred, including, in mitigation of the offences, the pleas of guilty, the stage at which they were made, the remorse of those involved, the offer of cooperation and the promised cooperation into the future. Against those matters, I have to look at the issues of general and personal deterrence which, with both of you, having prior convictions for armed robberies has some real significance. The need for denunciation of crimes of this nature, your prior convictions, the seriousness of the offending, the continued nature of the offending, and balance those matters, whilst remembering the principles of totality, proportionality and parity of sentences imposed on co-offenders by Teague J.

64 In relation to the issue of parity, the early stage at which those co-offenders confessed their involvement, their immediate willingness to give evidence and their lack of prior convictions, make the sentences imposed upon them difficult to equate to your sentences. Accordingly, in my view, I am not bound by the sentences imposed on those co-offenders, although I note them. PSC received a sentence of three years with a nine month minimum. PSB a total of six years with a minimum of two years; PSC total of six years with a minimum of two years.

65 There is no doubt that the offending behaviour is very serious and that even after the death of Mr Kastenberger, you planned and were willing to participate in two more robberies with loaded guns and the potential for serious consequences.

66 The sentences that I would have imposed, but for your pleas of guilty, and your promised cooperation with the authorities, would have been in mid double figures. The discount that I am going to give each of you is significant.

67 Pursuant to s.5(2A)(b) of the Sentencing Act which reads:

If in sentencing an offender a Court imposes a less severe sentence than it would otherwise have imposed because of an undertaking given by the offender to assist, after sentencing, law enforcement authorities in investigation or prosecution of an offence, the Court must announce that it is doing so and cause to be noted in the records of the Court the fact that the undertaking was given and its details.

I also refer to s.5(2a)(c) which reads:

Nothing in sub-s.2A(b) requires a Court to state the sentence that it would have imposed, but for the undertaking that was given.

68 But I declare that the sentence I am about to impose on both of you is less severe than would otherwise have been imposed for the following reasons:

First, your cooperation to date with the prosecuting authorities;
Secondly, your proposed future cooperation and undertakings to give evidence against co-offenders and others;
Thirdly, the circumstances under which your sentence will be served.

69 Accordingly, I sentence you, Mark Dickson, as follows:

(i) In respect of Count 1, armed robbery, you are convicted and sentenced to be imprisoned for a term of 8 years.

(ii) Count 3, assisting offender, you are convicted and sentenced to be imprisoned for a period of 1 year.

(iii) Count 4, conspiracy to commit armed robbery, you are convicted and sentenced to be imprisoned for 4 years.

(iv) Count 5, conspiracy to commit armed robbery, you are convicted and sentenced to be imprisoned for 4 years.

70 I direct that one year of the sentence imposed on Count 4 be served cumulatively on the sentence imposed on Count 1 and that all other sentences are to be served concurrently with the sentence imposed on Count 1. That makes a total sentence of 9 years' imprisonment. I direct that you are to serve a minimum of 7 years before becoming eligible for parole.

71 Accordingly, I sentence you, Leonard Frank Ryan, as follows:

(i) In respect of Count 2, armed robbery, you are convicted and sentenced to be imprisoned for a term of 7 years.

(ii) Count 4, conspiracy to commit armed robbery, you are convicted and sentenced to be imprisoned for 4 years.

(iii) Count 5, conspiracy to commit armed robbery, you are convicted and sentenced to be imprisoned for 4 years.

72 I direct that one year of the sentence imposed on Count 4 be served cumulatively on the sentence imposed on Count 2 and that all other sentences to be served concurrently with the sentences imposed on Count 2. That makes a total sentence of 8 years. I direct that you are to serve a minimum of 6 years before becoming eligible for parole.

73 I direct that pursuant to s.18(4) of the Sentencing Act you, Mark Ewan Dickson, have already served 652 days in custody. In respect of Leonard Frank Ryan, I direct that pursuant to s.18(4) of the Sentencing Act that you have already served 626 days in custody.

I make the orders in respect of the retention of the forensic sample.

At a glance

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Decision date

Before

Source

Judgment (87 paragraphs)

Parties