R v II

Supreme Court of NSW|2008-04-09|Before: Fullerton J

Background 1 At approximately 11:55pm on Friday 9 June 2006 four young men, each with their faces obscured and wearing latex gloves, entered the public bar of the Whitehorse Hotel on the Princes Highway at St Peters. Three of the men were armed with a shotgun, a knife and a meat cleaver respectively. The fourth man had a bag for the express purpose of carrying away the proceeds of the robbery. The patrons and the manager of the hotel were subjected to physical violence and threats of physical violence in the course of being robbed of money and other items of personal property. 2 II (the offender) drove the four men from an apartment at Rosemont Street Punchbowl to St Peters that night knowing that they intended to rob the Hotel and/or its patrons, and with the intention of assisting them to make good their escape after the robbery. The four men alighted from the car in a street near the Whitehorse Hotel and made their way on foot to the hotel. The offender remained in the car at that location to await their return. Having regard to the location of the hotel relative to where the offender dropped off the robbers and where she remained awaiting their return, I am satisfied that there was some degree of pre-planning on the part of some of those involved in the robbery and, in so far as this offender is concerned, that she must have been party in a limited degree to those arrangements a short time after she left Punchbowl driving the car she had borrowed from her cousin. I will have something further to say about her role in the robbery, and the significance of an assessment of her role for sentencing purposes, later in this judgment. 3 Despite the fact that the men had weapons with them in the car from the time they left Punchbowl, and that they took the weapons with them as they left the car to make their way to the hotel on foot, it is accepted by the Crown that this offender was unaware of that fact prior to the robbery, as distinct from coming to learn of it after the robbery as she drove the men from the area. For that reason, she is to be sentenced for the offence of robbery in company as provided for in s 97(1) of the Crimes Act 1900 without any reference to the fact that the robbery was committed by the four men with weapons (one of them a dangerous weapon as defined) rendering them liable for the offence of armed robbery contrary to s 97(2). The offence to which she has pleaded guilty carries a maximum sentence of 20 years imprisonment in contrast to a maximum penalty of 25 years for the offence of armed robbery with a dangerous weapon. 4 The victim of the offence was Mr Ken Jankievski, the manager of the Hotel. The amount of $2500 was specified as the money taken from him. The offender has also asked me to take into account 11 additional offences of robbery in company itemised on the Form 1 in accordance with s 37 of the Crimes (Sentencing Procedure) Act 1999. Each of these offences accounts for either money or personal property taken from the patrons of the hotel comprising a total of $4205 in cash, four mobile phones, a watch, a cigarette lighter and a number of wallets. 5 The circumstances in which this offender entered a plea of guilty to the charge of robbery in company warrant some brief elaboration. 6 On 10 March 2008, this offender was jointly indicted with the four men to stand trial on one count of murder and a further count of the armed robbery of Mr Jankievski. All five accused entered pleas of not guilty to both counts. The deceased was a patron of the Whitehorse Hotel who, along with a number of other patrons, pursued the robbers from the hotel after the robbery. On approach to the car in which the offender was waiting as arranged, at least two of the robbers were tackled to the ground by the patrons. A fight ensued in the course of which the deceased was fatally stabbed. 7 On 7 April 2008, at the end of the Crown case, I directed the jury to acquit each of the accused on the charge of murder by reason of the fact that the Crown had no evidence capable of satisfying the jury that the act causing death was a deliberate or voluntary act of one of the accused. Defence counsel were then invited by me to confer with their clients over the luncheon adjournment as to the remaining count of armed robbery. Relevantly, Ms Rigg of counsel who appeared both at the trial and on sentence, reserved the offender's position until the following morning indicating that the Crown was being asked to consider a lesser charge in full discharge of the indictment. 8 On 8 April 2008, the offender was re-arraigned. She pleaded not guilty to armed robbery but guilty to robbery in company. The Crown accepted the plea in full discharge of the indictment. 9 The Crown conceded that despite the late plea it was nevertheless of some utilitarian value since it could not be gainsaid that the Crown case against this offender on the charge of armed robbery (or even the statutory alternative charge of robbery in company) was overwhelming. While she freely acknowledged in a lengthy and detailed record of interview with police on 11 June 2006, the day of her arrest, that she drove the young men to St Peters and that she dropped them off knowing that they had said that they were going to rob the hotel, she maintained that she did not believe they were serious and the full import of their intentions were only obvious to her after the robbery. Her plea is also redolent of remorse although in the absence of her giving evidence in the sentence proceedings it goes no further than that. 10 The weight that attaches to the plea of guilty in these circumstances in my view warrants a discount on sentence of 10 per cent. This is consistent with an established line of authority that accords some leniency to a person who pleads guilty to a less serious offence because of the utilitarian value in the plea in circumstances when the plea is entered well after the person is charged and where the lesser charge is substituted by the prosecuting authorities (see for example R v Young [2003] NSWCCA 276 at [11]).

The evidence on sentence 11 It was agreed that for sentencing purposes the facts should be assembled from the evidence led against the offender in the joint trial relevantly, of course, limited to the evidence admissible against her. I have been invited by Ms Rigg to accept the account the offender gave in her record of interview, discounting as unreliable only that aspect where she denied knowing or believing that the men had agreed to commit the robbery before the robbery took place. While I am not satisfied that the balance of what she said to police is categorically truthful in every respect, in particular I have real doubts as to whether she should be believed when she claims to have left her cousin's apartment intending to use her cousin's car to visit a friend without knowing that the four young men would be waiting in the car for her, I am not persuaded beyond reasonable doubt that she was complicit with them at that time. In all other relevant respects I consider that she was frank with police and, for that reason, I propose to draw from her record of interview where necessary. What remains unexplained by her in the record of interview, or by the other evidence in the proceedings, is why she agreed to join with the young men in the criminal enterprise at all. Again, in the absence of her giving evidence before me I can only attempt to appoint a reason or reasons. I will return to consider that matter. 12 On behalf of the offender, Ms Rigg tendered a letter prepared by Janet Honnold of the Department of Corrective Services stating that whilst incarcerated the offender was a peer support person for others in custody. Ms Rigg also tendered a number of certificates of achievement obtained by the offender after successfully completing a number of course whilst in custody together with an Inmate Work Performance Record. Ms Rigg also called oral evidence from a number of witnesses testifying to the offender's character and the progress she has made in achieving insight into her offending in pursuit of a sustained rehabilitation. I will return to consider the weight of that evidence in due course.

The facts 13 On Friday 9 June 2006, the day of the robbery, the offender was working at the Bexley RSL Club. She commenced work at 4:00pm that day and finished at 9:00pm. She was picked up at the end of her shift and driven to Unit 2, 23 Rosemont Street, Punchbowl, premises occupied by her cousin. It would seem that she had earlier made arrangements to visit her cousin (and it would seem stay the night) although she was not expected until later that night or early the following morning. 14 Her cousin owned a white Toyota Celica. It was this vehicle that was used in the robbery. Some time during the evening a number of young men visited her cousin's unit. Four of these young men were later to rob the Whitehorse Hotel. Amongst them were her cousin SL, two others known to her as FT and RT, and another male, WS, who she did not know at that time. The males RT and WS were juveniles at the time being aged 15 and 17 and accordingly by operation of s 11 of the Children (Criminal Proceedings) Act 1987, they were not able to be identified by name in the trial proceedings. To ensure their anonymity I directed that none of the accused would be referred to by their given names. 15 It appears from the evidence that the young men came to unit 2 from unit 9 of the same apartment block where they had gathered earlier that day. In her record of interview the offender said that although the young males talked about "doing a job in Sydenham" she did not really pay much attention to what they were talking about. 16 Some time later the offender decided to drive her cousin's white Toyota Celica to a friend's place nearby. As I noted earlier, she told police that it was only when she got to the car park that she noticed that all four males were in the car. She said in her record of interview: "…I asked the boys what they were doing and they said "they wanted to go to Sydenham and I was, like, no, youse are joking right. And he goes, no, let's just drive over there, drive over. We went past there because I, I was, I was, like, asking them what pub are they talking about…"

17 After filling the car with petrol, the offender drove along the Princes Highway in a northerly direction towards the Whitehorse Hotel located on the corner of Victoria Street. She said that she missed the left turn into Victoria Street but took the next left onto Campbell Street and then another left onto Church Street facing towards Victoria Street. The offender then turned the vehicle around such that it was facing towards Campbell Street so as to provide an escape route. It was here that the males got out of the car and told the offender to wait. While, as I have said, the robbery was clearly well planned with careful thought given to how it might be successfully executed, I am not satisfied that this offender was party to those plans and that in a practical sense her role was limited to that of a driver. It would also appear that the males deliberately kept from her the fact that the robbery was to be an armed robbery, no doubt in an effort to secure her agreement to participate with them at all. 18 She stated the following in her record of interview: "Q. And when you stopped, what happened then? A. They all hopped out of the car and told me to wait. I was shitting my pants, man. I didn't know where, what the hell was, what was going on. It was, all I remember is them running [back] to were running towards the car, two of them hopping in and someone standing at the door. All I heard was other people's voices and I didn't even know what to do. I heard other, when I heard, soon as I heard other people's voices I was, like, oh, fuck, what the hell… …as soon as they jumped in the car I was telling, I was screaming and I wanted to hop out of the car. I didn't want anything to fucking do with what they did. I asked them what the, what's going on, what the fuck, is anyone, well, what happened, is anyone hurt. No one, none of them were saying anything to me. They were just telling me to get the fuck out of the area." 19 Later in the interview, she assessed that it was half an hour after the four men went in the direction of the hotel that she saw or heard the men running back to where she was waiting in the parked car. She said she heard fighting. It would appear that two or perhaps three of the males managed to extricate themselves from the fight and got into the car. As she took off, one of the males said to her that one of the others was being bashed and had been left behind and told her to reverse the car up towards him. She reversed the car over a short distance before she crashed into a parked car on the side of the road. Once all four males were in the car the offender drove off. Some short distance away she was involved in another accident. She was told to keep driving but ultimately she refused, either because she was physically unable to drive the car due to her admitted state of terror or because the car was seriously damaged and could not be driven. It appears that at that stage she told them to get out of the car saying: "I'm going to get out. Youse can drive the car. I don't want anything to do with it." 20 The four males got out of the car and ran off leaving the offender by herself. She gathered some of the owner's personal belongings from inside the car including a personal CD player and some clothing. As she had no money or credit on her mobile phone she was forced to walk back to Punchbowl. She was picked up en route in a taxi with two of the other male co-offenders as passengers. 21 There is no evidence that she had any contact with any of the four males after returning to her cousin's apartment in the early hours of 10 June 2006 and before she was arrested at her place of work late the following evening. 22 Aside from some of the personal property of the patrons that was found on the street after the robbers had extricated themselves from the fight, and a bottle of alcohol found by police in the abandoned Celica, no other property was recovered. There is no evidence that this offender received any part of the remaining proceeds of the robbery. 23 Where a number of persons agree to participate in a joint criminal enterprise, it is not always appropriate or even possible to assess with any degree of precision the role which each played in the commission of the offence. As a matter of principle, if each were involved together, they should each bear equal responsibility for the commission of the offence since the objective criminality involved in the offending is the same: see R v Hoschke [2001] NSWCCA 317 at [18]-[19]; R v McIlwraith [2005] NSWCCA 137 at [17] and R v Dukino; R v Moshref [2003] NSWCCA 379 at [27]-[28]. Applying that principle to an armed robbery, where the driver of the getaway car is remote from the commission of the robbery and therefore not physically present when the victim is threatened with a weapon or violence is inflicted, but is otherwise aware of the fact that the co-offender is armed and is for that reason charged with the offence of armed robbery, the objective criminality of each of the offenders is of the same quality. In this case, however, not only has the offender pleaded guilty to a less serious offence, conceded by the Crown to warrant the finding that her criminality is different from, and less serious than, those with whom she agreed a robbery should be committed in company, the objective criminality inherent in the offence to which she has pleaded guilty is less serious. Not only was she remote from the site of the robbery, but she was unaware that the men were armed when they left her to commit the robbery. For this reason, I consider it open to regard her role in the criminal enterprise as distinguishable from that of the robbers.

The guideline judgment in R v Henry 24 Despite the fact that R v Henry and Others [1999] NSWCCA 111; 46 NSWLR 346 was concerned with the frequently occurring offence of armed robbery, it is equally applicable when sentencing for the offence of robbery in company (see R v Murchie [1999] NSWCCA 424; 108 A Crim R 482). In order to determine the extent to which the head sentence to be imposed in this case is within or outside the range of 4-5 years specified as a guideline, it is necessary that I consider which of the common features to which the guideline is directly referable are evidenced in the case of this offender, and whether there are other aggravating or mitigating features which will justify a sentence below or above the range. 25 I accept that I am obliged to give full account to what is described as a narrow sentencing range specified as a guideline, however, I am also mindful that the range should be used as a reference point only, in this way ensuring that a broad sentencing discretion is retained and that individualised justice is achieved. That is not only a vital feature of any sentencing exercise but, as the Court in Henry emphasised, the so-called features of commonality do not represent the full range of features relevant to the sentencing exercise where a breach of s 97 of the Crimes Act is under consideration and, in addition, many of the characteristics contain within themselves inherent variability. 26 The commonality of features attracting the guideline sentence are as follows: (a) Young offender with no or little criminal history; (b) Weapon like a knife, capable of killing or inflicting serious injury; (c) Limited degree of planning; (d) Limited, if any, actual violence but a real threat thereof; (e) Victim in a vulnerable position such as a shopkeeper or taxi driver; (f) Small amount taken; (g) Plea of guilty, the significance of which is limited by a strong Crown case.

These features are reflected in the following way in this case. I am of the view that despite the offender being unaware that weapons would be used to effect the robbery and, necessarily, that they were weapons of a type capable of killing or inflicting serious injury, in agreeing that the hotel be the site of the robbery, she must be taken to have anticipated that actual violence or the threats of violence would be applied to those from whom property would be taken. In any event, her knowledge that four men would effect the robbery and that patrons and management would be confronted with aggression as they went about their lawful business is a matter which places the offending in a serious category, although I accept, not the most serious. That said, and while I regard my self as well satisfied that there was some degree of pre-planning on the part of those directly engaged in the robbery (inclusive of the roles each of the men were to perform once inside the hotel), I am not satisfied for the reasons already referred to that this offender participated at the planning stage even though it must have been clear to her that the others had given thought to how to successfully execute their joint plan. That is not to say that she acted impulsively in the moment. To the contrary. She had more than sufficient opportunity to refuse to participate, whether from the time she arrived at the car park at Rosemont Street to see the four men in the car or en route to St Peters. Even after agreeing to participate, she had more than sufficient opportunity to withdraw once the men had left the car. She could simply have driven away. Instead she waited in the car for what she assessed to be half an hour for the men to return. While this may have been an overestimate by her, at the very least she was alone in the car for some time before they returned. The fact that she was not subject to any force or the threat of force by any one of the four men is fatal to any suggestion that she should be treated as a young woman who was submissive or overawed in the company of the males. On the other hand, I do sense that she felt some alliance with SL as her cousin and was likely impressed by his bravado. By reference to the CCTV footage of the robbery, it is clear that he was the leader of the group. 27 Having regard to my own observations of her demeanour in the record of interview, and what I can divine of her character from that source and from the views of those who have given evidence in these proceedings, I can only conclude that her lapse of judgment is explained by being caught up in the moment and perhaps by some misplaced sense of family loyalty. While loyalty within families or extended families is commendable, in this instance giving sway to it is not to her credit. I accept that on reflection she sees it as a matter of chagrin that, as a young woman who prides herself on having strength of purpose and character, she allowed herself to descend to criminal conduct of such a grave kind. I am also satisfied that she is acutely conscious that she will have to bear the consequences of her criminal conduct for the duration of her adult life. On the other hand, I am firmly of the view that were she to have known it was intended that weapons would be presented by the robbers and perhaps used to execute the robbery with all the risks entailed by that conduct, she would not have joined with them at all. It is likely that for this reason her cousin, SL, kept that vital piece of information from her. 28 I have already determined that the plea of guilty in this case should attract a discount of 10 per cent. In addition, I will take into account in fixing sentence that some additional leniency should be afforded her by reason of the fact that without the admissions made to police in the record of interview as to her presence at the scene, the circumstances in which she came to be there and the detail of what she saw and heard before driving away from the scene, that the police may not have had a sufficient basis upon which to prefer charges against her. That matter aside, the other features of this offence are indistinguishable from the commonality of features identified in Henry. 29 There are no features that operate to aggravate the offence as provided for in s 21A of the Criminal (Sentencing Procedure) Act so as to take her offending outside the range specified in the guideline judgment. The fact that the offence was committed in company, thereby generating greater fear and distress for the victims, is already comprehended by the charge itself. 30 By contrast, however, I am satisfied there are features that serve to mitigate the objective seriousness of the offending although not such as to appoint a head sentence significantly beneath the lower range specified in Henry.

Subjective circumstances 31 The offender was aged 20 at the date of the robbery. She is now 22 years of age having spent her 21st birthday in custody. She has no antecedent criminal history. She was arrested at her place of employment on 11 June 2006 and taken into custody. She has remained in custody since that date. 32 In assessing the role she played in the commission of the offence, I have already had occasion to note that the offender was in full-time employment at the time of the robbery as a trainee in hospitality at the Bexley RSL and that she left work to travel to visit her friends and family at Rosemont Street Punchbowl on the night of the robbery, as distinct from travelling to her family home at Bexley North, because she had finished work earlier than expected. 33 As part of her traineeship she attended a TAFE college having enrolled in a certificate course in hospitality. Ms Faulknell, a co-worker at Bexley RSL and a fellow student at TAFE, described her as a committed student who was extremely hardworking and dedicated. She also said that the offender encouraged her to maintain her studies notwithstanding the travel time that was involved in her attending the TAFE college and that she has helped her to deal with what she described as worrying family problems both at that time and since that time. Ms Faulknell also made the observation that the offender appeared to her to have matured over the period of her remand in that she was less likely to laugh at what Ms Faulknell described as her stupid jokes. A levelling change in the offender's outlook and behaviour over the last two years is perhaps not unexpected given her relative youth at the time of the robbery and the fact that she has not previously encountered the criminal justice system. 34 While not in any way wishing to diminish the significance of Ms Faulknell's evidence as a co-worker and fellow student, I consider the observations of by Ms Mailangi and her aunt Ms Terepo as to the impact of incarceration as carrying significant weight. Ms Mailangi has shared a close community connection with the offender over ten years through the Church of Later Day Saints at East Lakes, a connection that has been forged and maintained over the past three years as a result of Ms Mailangi's position within the Church as a spiritual parent for young single adults. In that capacity she presides over a class of about 20 young adults who meet weekly as part of the Church fellowship. The offender was a member of that group prior to her offending (something which makes her offending even more difficult to understand) and has maintained her membership of the group throughout the period of her incarceration by correspondence. Ms Mailangi gave evidence that the offender had matured a great deal and was a source of inspiration for the young people in the group. She felt that the offender shows all the qualities of leadership and would be a role model to the class and those with whom she will come into contact in the future. 35 Ms Terepo has shared a very close relationship with the offender since she was born such that she is treated as a daughter. She described her niece as kind, loving and warm. She has maintained close contact with her during the course of her imprisonment both by telephone and with regular visits. Ms Terepo believes that the experience of being involved in the robbery no less than the two years spent on remand have taught her a lesson, that her eyes are opened and that she will never do anything to break the law again. 36 I am impressed by the sincerity and simplicity of the observations of each of the witnesses who have given evidence. It is clear to me beyond any doubt that the offender's conduct on the night of 9 June 2006 was not a reflection of her true character. Indeed, I venture the view that it was utterly out of character. It is with unusual confidence that I express my own view that she will not re-offend. 37 Her achievements from within custody are not only reflective of her innate sense of responsibility and industry (neither of which I hasten to add were evident on the night of the robbery), they are also testament to the efforts she has made to make productive use of her time in prison and to prepare for her release. They serve to reinforce my express confidence that she will not re-offend. 38 In the Inmate Work Performance Record, she scored a consistent "excellent" in each of the following categories: personal development, industrial performance, workplace development, demeanour, interaction with other inmates, interaction with officers. The Manager of Industries, Mr William Haddad, described her as a committed, loyal and responsible young lady who leads by example. He also observed that her respectful attitude towards officers, inmates and staff has allowed her to advance within the centre's employment opportunities. In the course of the last 22 months the offender has been employed as a clerk in the warehousing and packaging unit of the Silverwater Women's Correctional Centre. She has also worked as a clerk for the Manager of Industries and as the librarian. The library is located in the Education Unit and is under the supervision of the Senior Correctional Education Officer, Ms Janet Honnold who provided a report tendered by Ms Rigg in the sentence proceedings. In that report she says as follows: "Jane's work in the library has been exemplary. She is very dedicated to providing a library service to offenders. Part of the requirement of the position is to undertake training. Jane is due to be enrolled in certificate 3 in library services when her court finishes. This training is run through the corrective services at Canterbury Library. The director of library services oversees this training across all the correctional facilities in the State. Jane is very determined to undertake this training. In the event that she is released, we have organised for her to continue training in the community."

39 I am of the view that, in combination, the subjective circumstances of this offender should be given considerable weight in the fixing of sentence. It is vital, of course, that they do not overwhelm the sentencing discretion thereby diminishing the importance of general (and to a lesser extent in this case) specific deterrence or inhibit the role that the passing of sentence plays in reflecting the abhorrence the community justifiably has for offending of this kind. 40 In fixing sentence, I have had regard not only to the guideline judgment but to the statistics compiled by the Judicial Commission. I have also taken into account the matters of the Form 1 as provided for in Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 156 in fixing the term of imprisonment. Although each of those matters are separate offences, they cannot simply be ignored. They are in my view, however, so inextricably linked with the principal offence, being committed at the same time in the course of the same robbery, any additional need for the sentence to reflect the need for deterrence is already well accounted for. 41 I am also satisfied that special circumstances warranting a departure from the statutory relationship between the non-parole period and the term of imprisonment are made out in this case by reason of the fact that this offender has spent two years on remand has not otherwise been in breach of the criminal law and her relative youth. I have however only allowed a slight variation from the ratio that would otherwise obtain by operation of s 44(2) of the Crimes (Sentencing Procedure) Act as I have come to the view that to do otherwise would result in a non-parole period that would fail to reflect the purposes of punishment. Orders 42 In respect of the offence of robbery in company contrary to s 97 of the Crimes Act, I sentence the offender to a non-parole period of 21 months commencing on 11 June 2006 and expiring on 10 March 2008 with a balance of term of 15 months expiring on 10 June 2009. 43 In accordance with s 50(1) of the Crimes (Sentencing Procedure) Act, I direct that the offender be released forthwith. **********

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Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 156 R v Dukino; R v Moshref [2003] NSWCCA 379 R v Henry and Others [1999] NSWCCA 111; 46 NSWLR 346 CASES CITED : R v Hoschke [2001] NSWCCA 317 R v McIlwraith [2005] NSWCCA 137 R v Murchie [1999] NSWCCA 424; 108 A Crim R 482 R v Young [2003] NSWCCA 276

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Judgment (9 paragraphs)

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Cases Cited (7)