R v Herbert [2007] VSC 264

Supreme Court of Victoria|2007-07-18|Before: WHELAN J

CRIMINAL LAW - Sentence - Armed robbery (1 count) - Plea of guilty - Undertaking to give evidence in re-trial of a co-accused on the original presentment - Prior convictions - Discount for guilty plea and co-operation - General and specific deterrence - Prospects of rehabilitation - 3 years 9 months imprisonment with a non-parole period of 2 years 6 months.

1 Mark Alan Herbert, on Monday, 16 July 2007 you were arraigned on one count of armed robbery to which you pleaded guilty. The maximum penalty for the offence of armed robbery is 25 years imprisonment.

2 On the original presentment there were seven accused. Three were charged with assisting offences. Two brothers, John Kohunui and Tame Kohunui, were each charged with murder and two armed robberies. You were charged with one of those armed robberies, and another man named Wally White was charged with the other armed robbery and with the murder. After discussions between counsel for John Kohunui, counsel for Tame Kohunui, and counsel for the prosecution, the original presentment was amended so that the charge of murder against the two Kohunui brothers was amended to one of manslaughter. They were then re-arraigned and pleaded guilty to all charges. Consequent upon those guilty pleas by the Kohunui brothers, new separate presentments were filed in relation to you and in relation to Wally White. The trial of Wally White on the charges of murder and armed robbery commenced on 14 May 2007. On 8 June 2007 I discharged the jury as they were unable to agree. Prior to your guilty plea on 16 July 2007, it was envisaged that your trial would proceed after the re-trial of Wally White in October 2007.

3 All of the various charges to which I have referred relate to two armed robberies at a gaming venue named the Freccia Azzurra Club in Keysborough. The first occurred on 2 November 2004 and the second on 28 November 2004. In the course of the second armed robbery a security guard, Mr Jason Gully, was killed. The two Kohunui brothers have pleaded guilty to committing both armed robberies, and have pleaded guilty to manslaughter in relation to the security guard killed in the second armed robbery. You have now pleaded guilty to committing the first armed robbery. There was a third person at the second armed robbery. The Crown alleges that person was Wally White. The Crown alleges he was the one who shot and killed the security guard.

4 In the armed robbery to which you have pleaded guilty, you and the two Kohunui brothers attended the Freccia Azzurra Club in Keysborough at approximately 11.22pm. According to a statement you have now made and which was tendered on your plea you had a sword and a knife. The two Kohunui brothers were similarly armed. Two female staff members were present at the club at the time. They were not physically harmed. Over $30,000 was stolen.

5 The two Kohunui brothers had previously attended the club and conducted a reconnaissance. According to your statement, they had introduced the idea of carrying out the armed robbery to you and they had provided the weapons. Your role was to act as a guard at the front door of the gaming area and that is what you did.

6 You are now 27 years old. You were born in New Zealand and came to Australia in 1986 when you were seven years old. You have lived in the Dandenong and Pearcedale areas for most of your life. You finished Year 8 at school and left school when you were 15.

7 You have been unemployed for long periods in between having a number of manual labour-type jobs. At the time of the armed robbery you were working at a secondhand car yard in East Bentleigh. The two Kohunui brothers were co-workers with you there.

8 Your parents separated when you were 17 years of age and you left home at that point. Your father now lives in Dandenong. When you were arrested in January 2005 you were, in the words of your counsel, "based" with your father who was then living in East Bentleigh. At that time you were in a relationship with a woman at whose house you were arrested. You are no longer in that relationship.

9 You have a daughter who is five years of age. Your daughter lives with her maternal grandmother.

10 Your mother lives in the USA. You have three sisters who are aged 30, 29 and 26. I was told on your plea that the other members of your family, with one exception in relation to minor matters, have no history of offending. I was told on your plea that there were no real problems at home whilst you were growing up apart from some violence from your father.

11 According to your statement, you starting developing an addiction to heroin when you were 19 years of age and you committed a number of crimes involving stealing to support your habit as your addiction got worse.

12 Your criminal history is a bad one. You have many prior convictions for offences of dishonesty and drug use. You also have a prior history of violence including convictions for causing injury intentionally or recklessly, threatening injury, resisting police, false imprisonment, and two prior convictions for robbery. You have in the past received custodial sentences. On 12 July 2002 you were sentenced to a total effective sentence of 18 months' imprisonment with a minimum sentence of seven months before becoming eligible for parole at the County Court at Melbourne.[1] On 22 August 2003 you were sentenced at the Melbourne Magistrates' Court to a term of imprisonment of 90 days. The offence to which you have now pleaded guilty occurred on 2 November 2004.

13 You gave evidence on your plea. A copy of the statement you made to police on 28 June 2007 and an undertaking you signed on 16 July 2007 to give evidence in the trial of Wally White were tendered. A document entitled "Crown Opening on Plea" was tendered on behalf of the prosecution.

14 Victim impact statements have been filed, and were tendered on the plea, from the two staff members who were present at the time of the armed robbery. One of those staff members, Tea Ercoles, says in her statement that as a result of her involvement in this incident she has become anti-social and suffers from panic attacks and depression. Her statement reveals that she has suffered considerable distress as a result of the events on that night. The second staff member, Brooke McLean, was also present at the second armed robbery when the security guard was shot and killed. Her involvement in the two armed robberies has had a devastating effect on her and she has suffered considerably as a result.

15 On your plea your counsel submitted that the effect of the second armed robbery, where a person was killed, was likely to have been more significant for Brooke McLean than the first. Having regard to her victim impact statement, I accept that.

16 On your plea your counsel placed significant reliance upon the undertaking you have given and the statement you have now made. His submission was that your evidence "plugs a hole" in the Crown case against Wally White. He submitted that your evidence significantly strengthens the Crown case against White and that its value "cannot be overstated". He referred to R v Heaney and ors[2] and R v Duncan[3] and submitted that in this case the discount for your co-operation should be very considerable indeed. He submitted that in the circumstances the sentence imposed should be such that you become immediately eligible for parole. As at the date of the plea, 16 July 2007, you had served 916 days in custody (inclusive of 16 July 2007).

17 On your plea your counsel made the following further submissions:

(a) The two Kohunui brothers had been sentenced to five years' imprisonment in relation to the first armed robbery without any discount for co-operation. It was submitted that your sentence must reflect the fact that you are entitled to a discount for co-operation in relation to this armed robbery. It was also submitted that your role was perhaps a lesser one than the two Kohunui brothers in that the armed robbery was not your idea, you acted as a guard, and the weapons which were taken by the three of you had been provided by the Kohunuis.

(b) Whilst your guilty plea was very late you were still entitled to a discount for that plea. Without the plea witnesses would have had to give evidence in three trials, being Wally White's trial which has already occurred, Wally White's re-trial, and your trial.

(c) Your prior convictions are attributable to your history of drug use. Your counsel said that whilst you have been in custody you have been free of drugs. He indicated that you have done drug courses whilst in custody, and a bundle of certificates were tendered on the plea.

(d) He submitted that it is "common knowledge" that you have agreed to give evidence against Wally White and that accordingly for so long as you do remain in custody you will be at risk and it is likely that you will have to serve any such time in some form of protection.

18 Counsel for the prosecution made the following submissions:

(a) The offence was a very serious offence involving the use of weapons in a public place. You and your co-offenders set out to instil fear in order to achieve your objective. In the circumstances both general and specific deterrence are most important.

(b) The Crown accepts the defence submissions concerning the importance of the evidence which you have agreed to give against Wally White. The prosecutor said the evidence was "very valuable".

(c) The Crown does not take issue with the defence submission that the time already served would constitute an appropriate minimum term before becoming eligible for parole in the particular circumstances of this case. The prosecutor emphasised the importance of what he described as "breaking the code of silence".

19 The offence to which you have pleaded guilty is a very serious offence. In the armed robbery you took weapons with you which can only have been intended by you and your co-offenders to instil terror into the minds of those present. You achieved that objective.

20 I accept that all of the matters put on your behalf by your counsel are properly to be taken into account. Your guilty plea, even at this late stage, entitles you to a significant discount on your sentence. The assistance which you have agreed to give in the prosecution of Wally White entitles you to a very considerable discount. It is also relevant that such further time as you do serve in custody is likely to be more burdensome than would otherwise be the case because of the need for steps to be taken for your protection.

21 It seems to me that in your case three factors are of particular importance.

22 The first is the serious nature of the offence to which you have pleaded guilty.

23 The second is the fact that you have now made a full statement concerning the events of that armed robbery and you have undertaken to give evidence against the person who the Crown alleges was involved in the second armed robbery and who the Crown alleges was the one who fired the gun that killed Jason Gully. The Crown has assessed your evidence as being very valuable upon the re-trial.

24 The third matter of particular importance is parity between co-offenders. I sentenced the Kohunui brothers on 8 May 2007. In relation to the armed robbery to which you have now pleaded guilty they were each sentenced to five years' imprisonment. They received no discount for co-operation or assistance in relation to that charge. Each of John Kohunui and Tame Kohunui also have extensive prior criminal histories. When sentencing them I expressed the view that Tame Kohunui's prior history is relevantly more serious than that of John Kohunui. It seems to me that your prior history is relevantly similar to that of Tame Kohunui.

25 Specific deterrence in your case is important. Your criminal history is poor. With this offence you escalated your criminal behaviour to a new level. On the other hand, the course you have now taken in pleading guilty and in agreeing to give evidence against Wally White leads me to conclude that there are prospects for your rehabilitation. You are still relatively young.

26 General deterrence is also important. Crimes of this kind necessarily involve threats of violence to innocent people. Such crimes also necessarily involve the risk of actual violence. Actual violence did not occur in this particular case, but the two innocent staff members who were present have suffered considerably as a result of the activities of you and your co-offenders.

27 For the offence of armed robbery I sentence you to 3 years 9 months imprisonment and I fix a non-parole period of 2 years 6 months.

28 Pursuant to s.18(4) of the Sentencing Act I declare that the period to be reckoned as already served and to be noted in the records of the Court is the period of 917 days. Pursuant to s.5(2AB) of the Sentencing Act I announce that the sentence I have imposed is less severe than would otherwise have been imposed because of the undertaking you have given and I direct that that course be noted in the records of the Court.

[1] It seems that whilst the sentence on one count was subsequently varied on appeal that variation did not alter the total effective sentence or the minimum.

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