R v Gruber, Ridgway & Rowley [2004] VSCA 100

10. Brendan Gruber pleaded guilty to counts 1 and 3 but not guilty to count 6 and he was acquitted on that count. The learned trial judge heard a plea for leniency on his behalf on 18th July 2002 and on 26th July 2002 sentenced him to 295 days' imprisonment, which was equal to his pre-sentence detention. Nothing further need be said about Brendan Gruber.

13. The applicant Peter Gruber pleaded guilty to count 3 but not guilty to counts 2, 4, 5 and 6. The applicants Ridgway and Rowley pleaded not guilty to counts 2, 3, 4, 5 and 6. Ridgway and Rowley were acquitted on count 3. All the applicants were found guilty on counts 2, 4, 5 and 6. After hearing a plea for leniency on their behalf on 9th October 2002 the learned trial judge sentenced them on 25th October 2002 to three years' imprisonment on count 2, two years' imprisonment on each of counts 4 and 5 and 14 years' imprisonment on count 6. Gruber was also sentenced to two years' imprisonment on count 3. As no orders for cumulation were made, the total effective sentence in each case was 14 years' imprisonment. In respect of each applicant his Honour fixed a non-parole period of ten years and made a declaration regarding 672 days' pre-sentence detention.

16. 5 Gruber admitted five findings of guilty in a Court of Petty Sessions in July 1967 and thereafter 29 convictions from 15 court appearances between July 1967 and January 1999. They included theft and other offences of dishonesty and conspiracy, with the applicant Rowley, to commit armed robbery. For that offence they were each sentenced to eight years' imprisonment in September 1986.[1] Those sentences were imposed prior to the abolition of remissions.

19. Ridgway contested the further presentment, which was amended, but he admitted 34 previous convictions from 15 court appearances between January 1974 and May 1991. They included theft and other offences of dishonesty, one count of robbery in company and three counts of armed robbery. On those three counts he was sentenced to 12 years' imprisonment in 1984, nine years' imprisonment in 1985 and ten-and-a-half years' imprisonment in 1991. The first and third sentences were reduced on appeal.[2] Those sentences, too, were imposed prior to the abolition of remissions.

22. Rowley admitted 60 previous convictions from 24 court appearances between May 1960 and September 1986, together with findings of guilt on charges of handling or receiving stolen goods in November 1994. His previous convictions included theft and other offences of dishonesty, one count of armed robbery, for which he was sentenced to seven years' imprisonment in 1986, and the conspiracy to commit armed robbery to which I have already referred.

25. Gruber seeks leave to appeal against sentence on two grounds:

"1. The sentence imposed is manifestly excessive. 2. The learned judge erred in including in the sentences imposed on counts 2, 4 and 5 a component referable to the finding that those offences were `aggravated by the fact that [the car and number plates were] stolen as part of the conspiracy to commit an armed robbery' (Sentence at 552.)" [3]

29. Ridgway seeks leave to appeal against sentence on four grounds:

"1. The sentence is manifestly excessive. 2. The learned sentencing judge erred in failing to give proper weight to the health, mental and physical, of the applicant. 3. Each of the four individual sentences imposed is, in all the circumstances, manifestly excessive. 4. The learned sentencing judge erred in the exercise of his discretion by sentencing without regard to the principles relating to double punishment, and in particular by: (a) aggravating the individual sentences imposed upon counts 2, 4 and 5 by reference to conduct which constituted the offending subject of count 6; and (b) including a component referable to the offending the subject of count 6 when imposing sentence upon counts 2, 4 and 5."

33. Rowley seeks leave to appeal against sentence on five grounds:

"1. The sentence in all the circumstances is manifestly excessive. 2. The honourable sentencing judge failed to give sufficient weight to the personal circumstances of the applicant, in particular his age. 3. Each of the four individual sentences imposed is, in all the circumstances of the case, manifestly excessive. 4. The learned sentencing judge erred in the exercise of his discretion in that, in imposing sentence upon counts 2, 4 and 5, he aggravated the individual sentences imposed upon each of these three counts by reason of the conduct which constituted the offending the subject of count 6. 5. The learned sentencing judge erred in the exercise of his discretion by imposing a sentence upon counts 2, 4 and 5 which included a component referable to the offending the subject of count 6."

37. Before turning to counsel's submissions, I shall say something briefly about the offences. On 15th December 2000 Brendan Gruber stole a Holden Camira with the registration number CVY 117 (count 1). Four days later a Holden Commodore with the registration number OQK 835 was also stolen (count 2).

40. On 21st December 2000 the police were maintaining surveillance of another Holden Commodore belonging to the applicant Peter Gruber. Gruber was seen to drive that vehicle to Ridgway's home in Ormond and then on to Bentleigh. At around 7.39 p.m. he left the car park of the Boundary Hotel in Bentleigh and at 7.44 p.m. parked his car in Charles Street. Brendan Gruber then drove up in a Holden Commodore with the registration number CJC 472. Evidence was given at the trial that it was stolen from the Boundary Hotel between 7 p.m. and 9.30 p.m. that day (count 3). Brendan Gruber parked the car and joined his father and they drove away.

43. On 22nd December 2000 Ridgway and Rowley were observed to travel in a Nissan sedan to a car park in Notting Hill. The Nissan was followed by Peter Gruber driving his Commodore. At the car park the applicants got into the Holden Commodore OQK 835 the subject of count 2. It was now equipped with stolen number plates (counts 4 and 5). Peter Gruber was the driver, with Ridgway in the front passenger seat and Rowley in the back seat. At about 4.30 p.m. they left the car park and drove east along Ferntree Gully Road, turning left at Gilby Road, Mount Waverley and then right into Lionel Road. At that point they were intercepted by members of the Special Operations Group.

46. When they were intercepted Rowley had a mask on his head. He had his hand in the floor well but, when confronted by the police, he put his hands over his head. They found a revolver and a mask in the floor well below him. After all the occupants of the car were removed, the police also observed a bag with a jemmy bar in the front passenger foot well and a white bag on the front passenger seat. There was a sawn-off shotgun on the sill between the front passenger seat and the door and a mask on the centre console. A third mask was found under the pedals in the driver's foot well. The masks were full-head latex masks in the likenesses of former American Presidents. All the applicants were wearing gloves.

49. The firearms removed from the vehicle were later examined. The shotgun was a sawn-off 12 gauge double-barrelled shotgun. It was loaded with two shells, but only the right firing pin was functional. The revolver was a functioning .357 magnum Smith & Wesson. It was loaded with six bullets. The Crown case on count 6 relied on the applicants' evident preparations for an armed robbery. It was the last banking day before Christmas and they were intercepted near an ANZ bank and a National Australia bank.

52. Counsel for the applicants in this Court advanced two principal contentions. The first is best introduced by a passage from the sentencing remarks.[4] After mentioning that the applicants had each been found guilty on count 6, his Honour continued:

"In addition, you have each been found guilty of one count of car theft, count 2, which is a very prevalent crime in our community. It was aggravated by the fact the car was stolen as part of the conspiracy to commit an armed robbery; and you have been found guilty of two counts of theft of car registration plates, counts 4 and 5, likewise as part of the conspiracy to commit an armed robbery." (Emphasis added.)

It was submitted that that passage, in conjunction with the length of the sentence imposed on count 6, showed that there was an element of double punishment in the sentences imposed on counts 2, 4 and 5.

57. Counsel's second principal contention was that the sentence of 14 years' imprisonment imposed on count 6 was manifestly excessive.

60. There is a good deal of learning on the subject of double punishment, including the effect of s.51 of the Interpretation of Legislation Act 1984, but for present purposes it is sufficient to refer to R. v. El-Kotob[5]. In that case the appellants pleaded guilty to a presentment containing one count of conspiracy to cheat and defraud and other counts relating to specific offences, at least some of which were part and parcel of the conspiracy. They were convicted and sentenced to terms of imprisonment on each count, all the terms to be served concurrently. It was held, by majority, that that involved no double punishment. The critical difference between the majority and the dissenting judge was that the majority were not persuaded that the specific offences had been factored into the sentences imposed on the count of conspiracy, whereas the dissenting judge considered that they had been fully absorbed by that sentence.[6]

63. This case was very different. Sentencing for conspiracy does not begin and end at the formation of the agreement to pursue a course of conduct that will involve the commission of an offence.[7] The conspiracy continues until it is abandoned or succeeds or is prevented and acts done in pursuance of it may be taken into account.[8] It is clear that his Honour took the thefts of the Holden Commodore OQK 835 and the number plates into account, as he was entitled to do, in deciding to impose a sentence of 14 years' imprisonment on count 6. That is apparent from the length of the sentence and from his description of the conspiracy. It follows that the sentences imposed for the thefts could not properly be made more severe on the footing that the motor vehicle and the number plates had been stolen in implementation of the conspiracy.

66. The sentences imposed on counts 2, 4 and 5 were made more severe on that account. The judge said as much in the passage from the sentencing remarks set out above. Moreover, whatever might be said of the sentence imposed on count 2, the sentences imposed on counts 4 and 5 could be explained only on the basis that the number plates had been stolen in implementation of the conspiracy.

69. Counsel's first principal contention should therefore be upheld. I turn to their second principal contention, that the sentence imposed on count 6 was manifestly excessive.

72. I am fully conscious of the gravity of the offence the subject of count 6, as I have described it above, particularly the degree of planning and the use of loaded firearms, and the weight to be given to both general and specific deterrence. Apart from count 3, none of the applicants is entitled to any discount for pleading guilty. Nevertheless, in my respectful opinion, a sentence of 14 years' imprisonment was outside the range, mainly because the armed robbery the applicants intended to commit was prevented. In a straightforward case like this, account must be taken of the extent to which the conspiracy was implemented[9], although I hasten to add that different considerations may apply to other cases. Sometimes a conspiracy, even in the earliest stages, should be severely punished and a sentence of 14 years' imprisonment or longer would not always be excessive.[10]

75. I would therefore grant the applications for leave to appeal against sentence, allow the appeals and re-sentence the applicants. Their personal circumstances are recounted in the sentencing remarks, and I shall not repeat them, but it will be as well to refer to the points that were emphasized by counsel in the course of arguing manifest excess.

78. Mr Croucher stressed four points. First, it was said that Gruber, unlike his co-offenders, accepted responsibility for the offence. That is how his plea was conducted, but it did not prevent him giving notice of application for leave to appeal against conviction six days after he was sentenced, on the ground that the verdicts on all counts were unsafe and unsatisfactory. That application was abandoned shortly before the hearing of his application for leave to appeal against sentence. That is why, as in the case of the other two applicants, the application was not first considered by a single judge pursuant to s.582 of the Crimes Act 1958.

81. Secondly, Gruber's plea revealed the personal circumstances that motivated him to commit the offence. He was a qualified mechanic who had lost his business and become dependent on social security benefits. Nevertheless, as counsel conceded on the plea, he participated in the conspiracy with full knowledge of the risks. He did not claim that his role was different from the others. He said that he was "an equal player". Counsel's third and fourth points related to Gruber's age and previous convictions. A lengthy sentence would represent a substantial part of the rest of his life. His previous convictions, although extensive, included only one related to armed robbery, in contrast with three in the case of Ridgway and two in the case of Rowley.

84. Ms Leighfield emphasized two points. The first concerned Ridgway's prospects of rehabilitation. He had successfully completed a lengthy period of parole, was prepared to work and had employment open to him. He was also anxious to assist in the care of his aged parents and maintained an interest in his two children. Counsel's second submission related to her client's health. Two psychiatric reports had been obtained. She submitted that Dr Walton's report was to be preferred to that of Dr Senadipathy. The latter was not aware of two episodes of significant head injury in late 1999 and early 2000, which Dr Walton thought may have eroded Ridgway's judgment. Reference was also made to his physical condition, including diabetes and a swollen liver.

87. Consistently with his ground 2, Mr Holdenson emphasized Rowley's age. It was submitted that he was unlikely to re-offend. It may be that he is unlikely to commit another armed robbery after a substantial term of imprisonment, but specific deterrence is not so limited. He is a man with numerous previous convictions for offences of dishonesty. Nevertheless he has the support of a law-abiding de facto partner and his daughter. The thrust of the plea below was that he had a sense of fulfilment previously lacking in a life that began as a ward of the State and was beginning to settle down.

90. I am not persuaded that any difference should be made between the three applicants. They all have long, relevant criminal histories, but they are not beyond

redemption. Like the judge, I would be prepared to give them the opportunity of a lengthy period of supervision on parole. I propose that the Court substitute sentences of two years' imprisonment on count 2, 18 months' imprisonment on count 3 (Gruber only), six months' imprisonment on each of counts 4 and 5 and ten years' imprisonment on count 6, making a total effective sentence of ten years' imprisonment. I would fix a non-parole period of seven years.

95. I agree with the disposition of these applications as proposed by Callaway, J.A. for the reasons advanced by him.

[1] Gruber was sentenced on two other counts and Rowley on one other count, but those sentences were directed to be served concurrently.

[2] The total effective sentences on appeal were ten years' and nine-and-a-half years' imprisonment respectively.

[3] The Court granted leave to add this ground at the hearing of the application.

[4] It is the passage referred to in ground 2 of Gruber's application.

[5] [2002] VSCA 109; (2002) 4 V.R. 546.

[6] See especially [10]-[11], [54]-[58], [90] and [94]-[95].

[7] Crimes Act 1958, s.321(1).

[8] Savvas v. R. [1995] HCA 29; (1995) 183 C.L.R. 1 at 8-9.

[9] If 14 years' imprisonment was appropriate in these circumstances, a sentence of 16 or 18 years' imprisonment would have been called for if the armed robbery had taken place. It is unlikely that a sentence of that magnitude would have been within the range.

[10] Obvious examples include principals in drug cartels and crimes like the great train robbery in England in 1963. As it happens, in the latter case, 14 years' imprisonment was the sentence imposed, on appeal, on two of the conspirators who did not participate in the actual robbery.