R v John Kohunui [2007] VSC 181

Supreme Court of Victoria|2007-05-08|Before: WHELAN J

CRIMINAL LAW - Sentence - Manslaughter (1 count) - Armed robberies (2 counts) - Plea of guilty to all offences - Evidence given against co-accused in second armed robbery and murder - refusal to co-operate in relation to first armed robbery - Prior Convictions - 5 years imprisonment for first armed robbery, 4 years imprisonment for second armed robbery, 8 years imprisonment for manslaughter - 3 years of the sentence on the first armed robbery and 2 years on the second to be cumulative with manslaughter sentence - Total effective sentence after cumulation 13 years with a non-parole period of 9 years.

2 The maximum penalty on the offence of manslaughter is 20 years' imprisonment. The maximum penalty on the offence of armed robbery is 25 years' imprisonment.

3 On the original presentment there were seven accused. Three were charged with assisting offences. You and your brother, Tame, were charged with murder and two armed robberies. Mark Herbert was charged (with the you and your brother) with one count of armed robbery, and Wally White was charged (with you and your brother) with another count of armed robbery and with murder. Consequent upon guilty pleas by yourself, and by your brother, new separate presentments were filed in relation to Wally White and Mark Herbert.

4 All of the various charges 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.

5 In the first armed robbery you and your brother attended the Club at approximately 11:22 pm with a third person, who the Crown alleges was Mark Herbert. The three of you were armed with large knives and a meat cleaver. There were no firearms on this occasion. Two female staff members were present but no patrons. Over $30,000 was stolen. The armed robbery was planned, but not meticulously so. You and your brother attended the club the day before to conduct a reconnaissance of the premises. You and your brother collected weapons from one Riki Tourangi on the night of the robbery.

6 The second armed robbery, at the same venue, took place on 28 November 2004. Again, a third person was with you. The Crown alleges that that person was Wally White. You and your brother also say that that person was Wally White. Wally White has denied any involvement in the robbery. This time, in addition to knives, a firearm was brought for use in the robbery. The Crown accepts, as I do for the purpose of this plea, that it was the third person who had obtained and who carried the firearm. It was a high powered rifle.

7 As a consequence of your first armed robbery the Club had engaged a security guard, Mr Jason Gully. According to the statement you have now made, and which you adopted in sworn evidence given on your plea, you knew a security guard had been engaged by the Club and it was because of that that you and your accomplices decided that you would need to take a firearm with you this time.

8 In the second armed robbery the three of you arrived at about 11:39 pm. This time there were a number of staff and patrons present. In the course of the robbery your brother, Tame, was shot in the lower back by the security guard. The third person fired at the guard and killed him. The three of you left having taken in excess of $10,000, and you and your brother were apprehended some weeks later.

9 You and your brother, Tame, have undertaken to give evidence to the effect that the third person, who fired the shots which killed Jason Gully, was Wally White. The Crown accepts that neither of you carried or fired the rifle. The Crown has accepted a plea from each of you to manslaughter on the basis that the manslaughter is an unlawful and dangerous act manslaughter; the unlawful act being the act of taking the firearm to the robbery, and the danger being the risk a reasonable person would appreciate that serious injury could thereby result. I accept that that is the form of the manslaughter to which you have pleaded guilty.

10 You were born on 4 April 1978 and spent your early years in New Zealand. You grew up in an environment of domestic violence. You have two half sisters who are older than you and who still live in New Zealand. Your mother brought you and your younger brother, Tame, to Australia when you were about 10 years old. You have had little or no contact with your father since then.

11 I was told by your counsel on the plea that your troubles started at 14 or 15 years of age. You attended a number of different High Schools, and left school having completed Year 11. I was told on the plea that you were at one time an accomplished sportsman and in particular a rugby player. You began using heroin at about age 15. You have had little in the way of gainful employment. You are now 29 years of age.

12 Your criminal history is a bad one, but it is one which reveals little in the way of prior violence or threat of violence. You have many prior convictions for burglary, theft and other offences of dishonesty as well as many prior convictions for drug trafficking, use and possession. Your criminal record reveals that you served a custodial sentence in a Youth Training Centre when you were 18. You have been given suspended sentences, which you have breached, and community based orders and custody and treatment orders, which you have also breached. You have been sentenced to a number of short terms of imprisonment, by which I mean terms of less than a year. Most recently, on 21 May 2004 you were sentenced in the County Court to a term of 438 days' imprisonment on a charge of handling stolen goods. On your plea I was told that you and your brother had been charged with armed robbery as well as with handling stolen goods. You were acquitted of the armed robbery and convicted of handling stolen goods. The sentence was the time you had spent on remand awaiting trial.

13 The only indications of prior violence in your history are a conviction in 1997, when you were 18, for an offence of causing injury intentionally or recklessly, and a conviction in 2000 for possession of a regulated weapon.

14 You have throughout your adult life had a serious problem with the abuse of illegal drugs and with alcohol abuse. On your plea a report of the consultant forensic psychologist, Mr Tim Watson-Munro, was tendered. I have read that report and taken its contents into account. Mr Watson-Munro refers to addiction to heroin, amphetamines and alcohol. You have been on methadone. Mr Watson-Munro suggests, among other things, that there is a direct relationship between your longstanding drug and alcohol abuse and the current matters, that you had a turbulent developmental history characterised by exposure to considerable domestic violence and the absence of a relationship with your father, that you have a history of poly-substance abuse commencing at about 14 years of age, that an addiction to "ice" was relevant to your capacity to exercise judgment at the time of the offences, that you acknowledge your culpability and your need for professional assistance, and that you expressed regret for Jason Gully's death and have what he describes as a "developing sense of remorse".

15 On your plea your counsel described the circumstances as tragic, most obviously for Jason Gully and those close to him, but also for your family. Your mother, one of your sisters, and a cousin were present in Court. Your counsel said I should take into account your guilty plea and the fact that you have undertaken to give evidence in the trial of Wally White, the evidence of the psychologist, and the fact that drug abuse has formed the basis of all of your actions.

16 You gave evidence on your plea. The statement you have now made in which you describe Wally White's actions in the second robbery, and a written undertaking you have given to give evidence in his trial, were tendered. The statement expressly states that you do not wish to say who the third person in the first armed robbery was, and you do not say who it was.

17 Senior counsel for the prosecution in his submissions emphasised the importance of the evidence you are to give in the trial of Wally White. He said that you have not cooperated in relation to the first armed robbery, but that your statement concerning the second armed robbery and your undertaking to give evidence are most important. He said that without your evidence the case against Wally White is not strong. I accept his assessment. The prosecution submitted that I should also take into account the fact that the course you have taken places you in a position of personal danger and that it is likely you will have to serve your sentence under more burdensome conditions so as to protect you.

18 Victim impact statements have been tendered by Olive Gully, Jason Gully's wife and the mother of their child, Lae; Jason Gully's mother, Mary-Anne Gully; Jason Gully's father, Graham Gulley; and by three members of the staff, Tea Ercoles who was present during the first robbery, Paige-Louise Pritchard, who was present during the second robbery and Brooke McLean who was present for both robberies. The victim impact statements speak graphically of the terrible consequences of these events. Olive Gully says: "My world came to a sudden stop and caved in on me". She is left now to bring up their son alone. A report of a psychologist annexed to her statement describes the depression, anxiety and stress which she has suffered and continues to suffer. Mary-Anne Gully says: "I no longer live my life, I am here in body but my soul is empty". Graham Gully says: "I lost not only a son whom I loved dearly but also my friend". The staff have also suffered, and I particularly refer to the position of Brooke McLean who was present for both robberies and who, it seems, feels in some way responsible for Jason Gully's death. Her feelings of responsibility are utterly unjustified. She is in no way responsible for what occurred, you and your accomplices are responsible for it. Notwithstanding her own problems it seems that Brooke MacLean has also been a source of support to Jason Gully's widow, Olive.

19 The offences to which you have pleaded guilty are each very grave offences. In the first robbery you took with you weapons which can only have been intended by you to instil terror into the minds of those present. You achieved that objective. On the second occasion, in addition to the knives, the three of you brought a firearm to the Club. Again, the purpose of that was to instil fear and to thereby ensure obedience to your demands. The course you took necessarily involved the risk of use of the firearm with all the consequences that would entail. That is exactly what did happen, and an innocent person, who was doing what he was employed to do, was killed as a consequence.

20 There are some indications of contrition and remorse in the material, but they are not strong. Your guilty plea nevertheless remains a factor which ought to attract a significant discount on your sentence.[1] I accept in relation to your guilty plea to the manslaughter charge that your plea came at the earliest reasonable opportunity.

21 The assistance which you have agreed to give in the prosecution of Wally White entitles you to a very considerable discount.[2]

22 Your adolescent and adult life has been dominated by drug abuse and drug addiction, but the fact that these armed robberies were a further consequence of your drug problems is a factor entitled to little weight given the nature of these offences.[3] It is not irrelevant and I do take it into account as bearing on your personal circumstances.

23 It is a relevant factor that the course you have embarked upon is likely to result in you having to serve your sentence in protective custody which will be more burdensome than would otherwise be the case.[4]

24 It seems to me that in your case two factors are of particular importance.

25 The first is the serious nature and gravity of the offences and, in particular, the tragic and shocking consequences of your actions in the second armed robbery in that an innocent life was taken away.

26 The second is the fact that you have now made a full statement concerning the events of the second armed robbery, where that life was so tragically taken away, but not the first, and that you have undertaken to give evidence against the person you say, and the Crown alleges, was the one who pulled the trigger.

27 Specific deterrence in your case is important. Your criminal history is poor. With these offences you have escalated your criminal behaviour to a new level. The course you have taken in undertaking to give evidence is a factor suggesting there is a prospect of rehabilitation. I have considered what Mr Watson-Munro has written. Your criminal history, however, leads me to conclude that the prospects for your rehabilitation are not good. You are still relatively young and I do not consider that you have no prospect of rehabilitation.

28 General deterrence is also important. Crimes of this kind necessarily involve threats of violence to innocent people. They also necessarily involve the risk of actual violence and the possibility of the most serious and tragic of consequences. That is precisely what has happened here.

29 I have had regard to sentencing practices and trends. In relation to manslaughter, the potential range is very wide and statistics are of limited value, although they may provide guidance by showing general trends.[5]

30 Your brother, Tame, has pleaded guilty to the same offences as you. He is younger than you. His criminal history is relevantly worse than yours. His prospects for rehabilitation appear better. The conduct of the two of you in the two armed robberies is indistinguishable. Like you, his adolescent and adult life has been dominated by drug abuse. His situation is to some extent explained by a head injury which he suffered when he was 14. In all the circumstances it seems to me that the two of you should be treated the same in relation to these offences.

31 I will indicate the sentence I am imposing on each offence and I will then turn to address the issues of concurrency and cumulation,[6] and fix a non parole period.

32 On the first armed robbery, I sentence you to five years' imprisonment. I have not discounted this sentence for your cooperation and your undertaking to give evidence because you have not fully disclosed the circumstances of this offence in the statement you have now made. I have treated your undertaking as relevant to the issue of your prospects of rehabilitation.

33 On the second armed robbery, I sentence you to four years' imprisonment. This armed robbery was more serious than the first, in that you and your brother brazenly returned to repeat your earlier crime and your accomplice took a firearm this time, but I have discounted this sentence substantially because of your cooperation and undertaking.

34 On the manslaughter, I sentence you to eight years' imprisonment. Again, I have discounted this sentence substantially because of your cooperation and undertaking.

35 Whilst the two armed robberies were carried out against the same Club, in somewhat similar circumstances, and within the same calendar month, they were separate armed robberies, involving (with one exception) different individual victims, and they cannot be said, in my view, to be part of the one episode. Accordingly, it seems to me that a significant portion of the sentence on the first armed robbery should be served cumulatively.

36 The second armed robbery and the manslaughter are part of one episode. It is in my view nevertheless necessary that there also be some cumulation in these sentences in order to reflect the serious additional criminality involved in the two crimes notwithstanding that they were committed in the one episode.

37 In the circumstances pursuant to s 16 of the Sentencing Act I direct that three years of the term of imprisonment on count 3 (the first armed robbery) and two years of the term of imprisonment on count 2 (the second armed robbery) be cumulative with the sentence I have imposed on count 1 (the manslaughter) and be cumulative with each other.

38 This produces a total effective sentence of 13 years' imprisonment. I fix a non parole period of nine years.

39 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 846 days.

40 Pursuant to s 5(2AB) of the Sentencing Act I announce that the sentences I have imposed on counts 1 and 2 are 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] R v Duncan [1998] 3 VR 208, 216 ("Duncan").

[3] R v Bouchard (1996) 84 A Crim R 499 and R v Knell [2001] VSCA 82 at [9].

[4] R v Bangard [2005] VSCA 313; [2005] 13 VR 146, at 149, 152 and 153.

[5] Bangard at 149 and 153, and R v Cameron, 9 November 1995, VSCA, BC9502540 at p.7-9.

[6] In this respect I have endeavoured to adopt the approach explained by Ormiston JA in DPP v Grabovac [1998] 1 VR 664.

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