R v Newcombe & Middleton [1999] QCA 408

Court of Appeal (Qld)|1999-09-28|Before: McMurdo P, Pincus JA, Thomas JA, Murdo P

1 McMURDO P: The applicants pleaded guilty on 8 March 1999 in the District Court at Brisbane, together with Robert Douglas Kidd, to one count of armed robbery in company. On 30 March 1999, all three were sentenced to 7 years imprisonment in respect of that offence, and each was declared to be a serious violent offender. Kidd had also pleaded guilty to one count of unlawful striking with a projectile with intent to prevent lawful arrest and was sentenced to a further 11 years concurrent imprisonment on that count.

2 Both applicants claim the sentence was manifestly excessive in that the learned sentencing judge should not have declared them to be convicted of a serious violent offence under s 161B(3) of the Penalties and Sentences Act . The applicant Newcombe also argues that the learned sentencing judge erred in finding beyond any doubt that Newcombe knew of a plan involving a firearm prior to the actual commission of the offence.

3 The Biotech chemical factory at Rocklea produced a range of pharmaceutical products, including cough syrups, elixirs and drugs for relief of cancer sufferers. Biotech was supplied with drugs including pseudoephedrine, which they processed, bottled, labelled and supplied to pharmaceutical wholesalers who in turn supplied pharmacies. Pseudoephedrine is used in the production of cough syrups and elixirs and is a significant ingredient in the illegal manufacture of methyl amphetamine.

4 The prosecutor submitted that Kidd was a known associate of Sydney underworld criminal figures, although this was denied by Kidd's counsel. Operation Columbo was formed following the Wood Royal Commission in New South Wales by Queensland and New South Wales police and NCA detectives to investigate criminal activities and particularly Kidd and Ian Smith, a Queensland prison officer who has since absconded on bail. Surveillance in November 1997 uncovered meetings between Kidd, Smith, the appellant Middleton and another person who may have been Newcombe. Newcombe denied any involvement at this time. Intercepted telephone conversations with Smith, although in code, suggested that this offence was being planned from late November. The name "David Craig" (the name of the company taken over by Biotech in 1995) and Biotech's address were mentioned in intercepted phone conversations between Smith and Middleton. On 9 December 1997, Middleton phoned Smith to arrange for a deposit of $4,000 to be made to Smith's account; Friday at closing time, just after 5 was mentioned as being a "top time"; Middleton was to arrive on Thursday or Friday morning with a friend (Newcombe) to stay at Smith's house. These participants were closely monitored by police. On 11 December Smith purchased a panel van advertised in the Trading Post using a false name and licence number to transfer the vehicle; it was to be used to transport drugs obtained from the offence. Middleton and Newcombe arrived in Brisbane on Thursday evening, 11 December and travelled to Smith's house at Karalee. The three were followed by police when they drove to Biotech at about midnight; they were engaged in conversation there for about three-quarters of an hour.

5 The next day, the three purchased plastic garbage bins, plastic rubbish bags, gloves and a metal sieve. They were followed to the Breakfast Creek Hotel where they met up with Kidd, who had just flown in from Sydney. They left the Hotel shortly after midday and at 3.33 pm they all left Smith's home in two vehicles, the recently purchased white Falcon panel van and Smith's green Barina. Kidd was holding a blue bag in which, the prosecutor submitted, was Smith's .357 Smith & Wesson prison service revolver. Smith's green Barina was parked at the Highway Hotel at Rocklea and all four drove in the panel van to Biotech, arriving at 4.03 pm. Meanwhile, 17 police officers assembled in various vehicles in and around the Biotech laboratory. The panel van was driven past Biotech about four times before stopping nearby. The factory workers finished at 3.30 pm and the office workers at 4.30 pm. At 4.31 pm, the applicants parked the panel van outside the main entrance of Biotech. Smith remained in the driver's seat whilst Kidd, Middleton and Newcombe entered the building, where there was no security, dressed in dark clothing and wearing balaclavas and gloves. Kidd had the gun and Middleton was holding bolt cutters.

6 They first confronted Ms Min Min Shen, a 34 year old production manager, who screamed loudly. Kidd said, "We don't want to hurt you," and held the gun more or less down to his side, rather than in a directly threatening manner.

7 Hearing the commotion, the general manager, Mr Bird, aged 51, entered the office. He saw the gun and asked, "What do you want?" Middleton said, "We know you have 25 kilograms of pseudoephedrine here." Ms Shen said, "I don't think we have any." Ordinarily the maximum amount of pseudoephedrine kept on the premises was 5 kilograms. The offenders told the victims to open the safes containing the dangerous drugs, repeating "We don't want to hurt you, we only want some early Christmas presents. Nobody will get hurt if alarms don't go off. We're in contact with the police by radios." They were carrying scanners and a handwritten list of police radio frequencies for various police stations on the southern and eastern side of Brisbane; Operation Columbo used a secret frequency. Kidd said, "Don't try anything silly." After some initial difficulty in remembering the combination to the safe Ms Shen and Mr Bird opened the safe.

8 In the meantime, Middleton and Newcombe went through the warehouse area and found the other victim, Forbes, a chemist aged 35, who was hiding behind some shelving in the warehouse area. They said, "It's alright; we're not going to hurt you. Come this way."

9 The only drugs in the safe were for cancer sufferers; the offenders demanded pseudoephedrine. Forbes said he thought there was some upstairs. Kidd decided to take the drugs in the safe, which included pholcodeine, opium tincture, morphine hydrochloride, codeine phosphate and morphine hydrochloride solution which could be used to produce heroin. Ms Shen checked the office computer and ascertained that the company had only 1 kilogram of pseudoephedrine in stock; she did not know its whereabouts and it was not located until after the robbery.

10 Mr Bird said Kidd appeared in charge. Middleton and Newcombe took a number of bags of drugs out to the panel van in two trips, communicating with Smith by hand-held radios.

11 Kidd shepherded the victims to the rear of the premises so that the offenders could make their getaway unseen; the victims feared that they may be executed and were relieved to see Kidd leave by the back door.

12 Meanwhile, police moved in to apprehend Smith, Middleton and Newcombe. Special emergency response team officers entered the building in search of Kidd who was waiting to be picked up at the rear entrance. Maskell, a covert police officer driving in his vehicle saw Kidd running away; he mistakenly put his car in neutral rather than park and got out; Kidd pointed the revolver directly at him, Maskell ducked and Kidd fired. Maskell took his service pistol from his shoulder bag and fired at Kidd. Kidd fired a second time and again missed. Maskell's vehicle was slowly rolling down a slight incline and he and Kidd used the vehicle as a shield as they shot across it at each other. A bullet from Kidd's gun ricocheted off the roof of the vehicle and struck Maskell's watch which saved him from serious injury although he received some flesh wounds; for a short time he lay on the ground unprotected by the car. Kidd ran to a nearby construction site before firing two further shots at the vehicle which Maskell continued to use as a shield as it moved down the road. A large number of armed police officers some of whom opened fire with semi-automatic weapons moved in on Kidd who was apprehended after firing 5 of the 6 rounds in his gun. He was also in possession of a Stanley knife and a rope.

13 After apprehension both applicants were co-operative with police in that they offered no resistance; they chose not to be interviewed.

14 Victim impact statements showed that Mr Forbes was unaffected by the robbery, but Mr Bird and especially Ms Shen have suffered the expected consequences to victims of such a robbery and needed counselling. Mr Bird noted that the police who first entered the building were much more aggressive than the offenders; the applicants remain responsible for the effect of that aggression on the victims. The victims were treated with a degree of courtesy and respect in as much as this is possible in the context of an armed robbery; it was made clear to the victims that nobody would hurt them if they did what was asked of them and the gun was not pointed directly at them; the bolt-cutters held by Middleton were not used as a weapon. Ms Shen was told, "After this you can have a cold beer or a scotch". Nevertheless the offence was a terrifying experience for the victims and the offence is a serious example of an armed robbery.

15 Although the robbery was foiled, it was a professionally executed offence accurately described by Thomas JA during the submissions as a major, well-planned heist. The offenders were not drug addicts and were motivated by greed.

16 Although not an early plea, both applicants were prepared to plead guilty at an early stage to this charge, and did so as soon as the charge against them of unlawful striking with a projectile with intent was withdrawn. The applicants must be sentenced on the basis that they were not involved in Kidd's escapade subsequent to the robbery.

17 The applicant Middleton met Smith whilst he was in custody in Queensland. On his release, he established his own business as a motor mechanic but financial difficulties followed; Smith knew this and suggested he take part in this offence which Middleton believed would be a burglary, not a robbery. This was consistent with the evidence obtained from the intercepted phone calls. No other facts or submissions put forward by the prosecution were put in issue by Middleton's counsel at sentence.

18 Middleton was 38 years old and a trained mechanic. He had a significant criminal history, including a conviction for burglary in 1989 for which he was sentenced to 2½ years imprisonment with a recommendation for parole after 9 months; more recently in 1997 he was convicted of possession of stolen goods outside New South Wales and sentenced to 12 months periodic detention. He had no previous convictions for violence; he was in a steady relationship and the father of a 16 month old child, a 13 year old child from another relationship and was a father-figure to his partner's child from another relationship.

19 Newcombe's lawyer denied that Newcombe was involved in any plan prior to 9 December when he told Middleton he was travelling to visit a friend in Gin Gin, Queensland. Middleton told him he was travelling to Queensland to commit a break and enter which was to be assisted by inside information and therefore involved little or no risk. Newcombe agreed to assist and he borrowed his older brother's car to drive Middleton to Brisbane.

20 It was also submitted that Newcombe did not know a firearm was to be used before entering Biotech; only when the gun was produced did Newcombe become a party to an armed robbery in company. The learned sentencing judge understandably expressed surprise at this submission. The prosecution submitted, in effect, that in the absence of any evidence from prosecution witnesses that Newcombe had expressed lack of knowledge of the use of a gun when entering Biotech, the only rational inference was that Newcombe had joined in the plan to commit an armed robbery in dark clothes and balaclavas well before entering Biotech.

21 Newcombe gave evidence to support the submissions made on his behalf: he was not aware a gun was to be used until Kidd pulled it out during the commission of the offence; nor was he aware that balaclavas were to be used until immediately before the commission of the offence when Smith told him to use one; he was unaware that Middleton had transferred $4,000 into Smith's account; nor was he aware that hand-held radios and scanners were to be used. He believed he was assisting in the commission of a break and enter.

22 R v Morrison[1] requires proof beyond reasonable doubt of any disputed factual issue which, if proved, is likely to result in a heavier sentence; where a disputed factual issue, if proved, would favour the accused in the sense that it would be likely to result in a less heavy sentence, the onus is on the defence to satisfy the sentencing judge of that on the balance of probabilities. Although the onus of proof in sentencing is currently being considered in a reserved decision by the High Court[2], for the reasons I shall shortly give, the onus and standard of proof discussed in Morrison need not be considered in any detail here and I adopt in accordance with Morrison the standard and onus most favourable to the appellant.

23 The Court adjourned at 4.30 pm until 9.30 am the next morning when argument ensued as to the effect of Morrison. Newcombe then called over his lawyer who informed the Court that his client instructed that he did not wish to "proceed on this basis in relation to this argument"; it is accepted that Newcombe withdrew his contest with the prosecution case. Nevertheless, Newcombe's lawyer said the judge was required to make a finding as Newcombe had given evidence on the point. His Honour said "I will look after it. You can rely on me to look after it."

24 His Honour rejected Newcombe's evidence and found "beyond any doubt at all" that when the offenders drove to Biotech they all "knew Kidd would be armed and Middleton and Newcombe carried that knowledge with them when they entered the premises believing that some few staff would still be in attendance, that such persons were to be frightened into submission and co-operation".

25 His Honour was entitled to reject Newcombe's evidence; having done so he was entitled to infer beyond reasonable doubt from the uncontested summary of the evidence of the prosecution witnesses that Newcombe was aware that he and Middleton would be assisting Kidd in an armed robbery in company at the time they entered Biotech. But in any case, the matter was academic as Newcombe had withdrawn these claims.

26 Mr Hampson QC who appears for Newcombe on this appeal next submits that there was no evidence that Newcombe knew the gun was loaded and he should not have been sentenced on that basis. In his reply, Mr Devereux who appeared for Middleton in this appeal joined in this submission.

27 No submission was made at any time on sentence on behalf of either Newcombe or Middleton that they did not believe the gun was loaded. It follows from the submissions originally made on Newcombe's behalf that if Newcombe was unaware a gun would be used he could not know that it was loaded; but Newcombe withdrew this claim.

28 The facts placed before the sentencing judge by the prosecutor were as follows: "... they were armed with a very powerful revolver. It was submitted they planned for the robbery to be armed. How else would they ensure compliance by the employees, particularly if there is a number of employees still on the site?". The prosecutor did not directly submit that the applicants were part of a plan to use a loaded gun although this was implicit as the dramatic aftermath proved the gun was loaded; such proof, thankfully, is unusual.

29 If the applicants' case was that they were unaware that the gun was loaded, this was never conveyed to the learned sentencing judge; as no submission was made, the judge of course made no finding. In the absence of a clear submission from defence counsel that the applicants were unaware that the gun was loaded, the judge was entitled to infer beyond reasonable doubt that the only rational inference was that the applicants knew the gun was loaded or at least did not positively believe it to be unloaded. Such an inference is akin to the rebuttable inference drawn from the possession of recently stolen goods. To find otherwise would place an impossible burden on sentencing judges and the prosecution. Once knowledge of a loaded gun is put in issue, as it is likely to result in a heavier sentence, it must be proved beyond reasonable doubt. The severity of the sentence imposed by the learned judge suggests he accepted the applicants were either part of a planned armed robbery with a loaded gun or that the applicants at least did not positively believe the gun would be unloaded; there was no clear claim to the contrary.

30 The real issue in Newcombe's application is whether his sentence, which includes the declaration, was manifestly excessive.

31 Newcombe had a less extensive criminal history than Middleton, involving traffic and minor drug offences; he had not before been imprisoned. He was a 35 year old with a good work history and had recently married his long-term de facto wife; he supported his children and a step-child.

Were the sentences including the declaration under s 161B(3) Penalties and Sentences Act 1992 manifestly excessive?

32 Although the applicants' involvement was not as great as that of Kidd and Smith, and their conduct must be isolated from Kidd's subsequent dangerous conduct, they were nevertheless involved in a most serious offence. The plan was to obtain pseudoephedrine for the illegal manufacture and distribution of methyl amphetamine. The applicants knew that Smith was a prison officer who was prepared to abuse his position to further his criminal ends; the concept of the involvement of a prison officer in organised crime has diabolical anti-social implications. The applicants played an active role in an armed robbery in company; they wore balaclavas and dark clothing; a loaded revolver was used to frighten employees into submission; the careful planning involved the purchase in a false name of a panel van with darkened windows. Mr Bird and Ms Shen were understandably in fear of their lives. The offence was aimed not merely at obtaining cash, but at obtaining materials from which further criminal activity could be carried out for profit. The need for both particular and general deterrence in the circumstances is perhaps even greater than in the more usual cases of armed robbery in company.

33 Both applicants were mature men with prior convictions and without the mitigating factor of youth. In their favour, both pleaded guilty.

34 Middleton made no complaint in respect of the sentence of imprisonment of 7 years; the only issue was the declaration under s 161B(3) of the Penalties and Sentences Act 1992. As Middleton was sentenced to a term of imprisonment of less than 10 years, the sentencing court had a discretion whether or not to declare the offender to be convicted of a serious violent offence with the effect that he must serve 80 per cent of that sentence before becoming eligible for parole.[3]

35 The exercise of this discretion was discussed in R v Bojovic[4] where this Court noted:

"While the mandatory requirements of Section 161B(1) will inevitably interfere with the court's capacity to maintain parity and consistency, the same problem does not exist in relation to sentences under section 161B(3) where an additional sentencing discretion has been conferred. In such matters the courts have the power to maintain reasonable consistency between sentences, although they will of course heed the additional emphasis that has now been placed on protecting the community from violent offenders. As an example, if according to ordinary principles a violent offence seems to call for a sentence of between six and eight years, and it is one where the discretion to make a violent offender declaration arises, such that it might but not must be made, the sentencing judge has the discretion in the event that a declaration is to be made, to impose a sentence toward the lower end of the applicable range. Conversely if the judge is to give the offender the benefit of declining to make such a declaration, it might be appropriate to consider imposing a sentence toward the higher end of the range. If this were not done, it is difficult to see how the sentencing judge could properly discharge his or her duty under s 9 of the Act. A just sentence is the result of a balancing exercise that produces an acceptable combination of the purposes mentioned in Section 9(1)(a) to 9(e) of the Act."

36 The Court also noted the need for the existence of some proper purpose for the making of the declaration rather than the mere existence of seriousness and violence in the commission of the offence:

"In our view it is not appropriate that a declaration be made unless the overall sentence will be seen to be reasonably consistent with attaining the normal objectives of punishment. One of the purposes for which sentences are imposed is to protect the community from an offender when it is appropriate to do so.[5]"

37 The concept of protection of the community extends to imposing a sufficiently heavy sentence to deter these applicants and other criminals who would commit serious offences of this type.

38 Before a declaration can be made it is necessary that the offender has been convicted of an offence listed in the schedule[6] which includes offences which do not involve the commission of actual violence, for example, a wide range of sexual offences, bomb hoaxes, attempting to injure by explosive or noxious substances, trafficking in dangerous drugs, aggravated supply of dangerous drugs to minors etc and producing dangerous drugs. This leads me to conclude that Parliament did not intend to limit the circumstances where a declaration might be made to offences where actual violence is committed, although this is a relevant factor in deciding whether to make the declaration.

39 Nor is it necessary, in order to make the declaration, that the offender must have a violent criminal past although that, too, would be a relevant consideration in deciding whether or not to do so.

40 In R v Collins,[7] Collins pleaded guilty to armed robbery and was sentenced to 7 years imprisonment and was declared to be convicted of a serious violence offence. He was 32 years old with no prior convictions for violence and a minor criminal history including traffic matters, probation for unlawful use of a motor vehicle in 1984 and 40 hours community service for stealing in 1990; he had never before been sent to prison. He was in financial difficulty and stole a car in order to rob the Ray White office on rent day threatening the victims with a bucket of petrol, a lighter and a plastic juice bottle containing petrol and a rag. Although he moved the wheel on the lighter he did not actually ignite it. He was co-operative with police and expressed remorse. He had made an effort to rehabilitate himself whilst in pre-sentence custody; had the support of his family; an offer of future employment with a previous employer and a good work history. The Court held that the sentence of 7 years imprisonment was not manifestly excessive and there had been no error exercising the discretion in favour of making the declaration.

41 This offence, although quite different, is in my view more serious than Collins and supports the conclusion that the sentence imposed in this case, including the declaration, was within the proper sentencing range. The use of a loaded gun created a very real potential for violence; Kidd's subsequent use of the gun supports the submission that had the victims not been co-operative it may well have been discharged to frighten them into submission; why else was a loaded gun used in this offence.

42 The circumstances of the offence, consistent with the principles set out in Bojovic, warranted either a higher head sentence without a declaration and with a recommendation for parole, or, as here, a lower head sentence with the declaration. The learned sentencing judge first contemplated a sentence range from 8 to 10 years with a declaration and an early recommendation for parole and then concluded "I have come to the clear view that this is no case for any recommendation for early release. I think it is just to give each of the accused some discount for his plea and the other matters raised. That will go to the head sentence. It will bring each to slightly below the base range which the Crown suggested". He finally decided to make the declaration. His Honour effectively applied the principles set out in Bojovic in order to determine a just sentence in all the circumstances.

43 In Middleton's case, the sentence of 7 years imprisonment with a declaration under s 161B(3) Penalties and Sentences Act 1992 which requires that he serve 80% of that sentence before parole eligibility, a period slightly over 5½ years, cannot be said to be manifestly excessive. Nor has any other error of fact or law or failure to take into account a material consideration been demonstrated.[8] I would refuse Middleton's application for leave to appeal against sentence.

44 A proper distinction can and should be drawn between Newcombe and Middleton. His Honour erred when he said:

"... balancing it all up and considering all the submissions that have been made I see no reason to distinguish between Middleton and Newcombe in point of punishment."

Middleton played a more significant role in this offence than Newcombe and encouraged his involvement. Newcombe did not join the plan as early as Middleton. Middleton, not Newcombe was responsible for transferring $4,000 to Smith's account in order to purchase the panel van. Middleton had a worse criminal history having been to prison in the past for property offences. To impose the same sentence as Middleton on Newcombe was to impose a manifestly excessive sentence; a sentence of five and a half years imprisonment properly recognises the serious nature of the offence and the greater mitigating factors present in Newcombe's case but absent in Middleton's case.

45 For the reasons given in Middleton's case the declaration made under s 161B(3) of the Penalties and Sentences Act 1992 was also warranted in Newcombe's case; a sentence requiring him to serve a little under 4 years and 5 months before parole eligibility is just.

(1) In respect of Middleton, the application for leave to appeal against sentence is refused.

(2) In respect of Newcombe, the application for leave to appeal against sentence is allowed. The appeal is allowed. The sentence below is varied by deleting the term of imprisonment of 7 years and instead ordering that Newcombe serve a period of imprisonment of five and a half years.

47 PINCUS JA: I have read, and subject to what follows, agree with the President's reasons; I also agree that the orders proposed by her Honour should be made.

48 As is explained in the President's reasons, counsel raised before us a question which had not been touched on below, namely whether, before Kidd's use of it made that fact manifest, the applicants knew that the gun which Kidd carried during the robbery was loaded. The sentencing judge was not asked to make a finding about that and did not do so. As was pointed out in Morrison, there can be difficulty in applying a strict standard of proof to a loose fact-finding process: [1998] QCA 162; [1999] 1 Qd R 397 at 404; [1998] QCA 162. Whereas in a criminal trial what the Crown has to prove is defined by the indictment and any particulars supplied, in sentencing the issues needing resolution ordinarily emerge from discussion between the judge, counsel for the Crown and (if there is one) counsel for the offender.

49 There is no obligation on the offender to identify issues; in particular, the offender is not obliged to say to what extent he denies or wishes to qualify or admits assertions made by the Crown. When the offender is not represented, it may be necessary for the judge to take positive steps to elicit this information.

50 In the present case, as the President explains, no issue was raised about knowledge except that it was said that Newcombe did not know a firearm was to be used until Kidd produced one. But for that submission the judge could, in my view, properly have inferred from the circumstances that the parties to the robbery other than Kidd knew that Kidd went in with a gun. After evidence was given about that subject and further submissions were made, Newcombe gave instructions that he did not wish to "proceed on this basis in relation to this argument", which the judge was entitled to think meant that the submission about Newcombe's knowledge of the gun was withdrawn.

51 That being withdrawn, in my opinion the judge was entitled to treat Newcombe's knowledge as admitted. In fact his Honour went further and found it proved; that finding is unchallenged.

52 The question is whether the judge could proceed on the assumption that Newcombe's knowledge extended to the fact that the gun was loaded; whether his Honour did so is uncertain. Because Newcombe raised no issue about that, although he did raise and then abandon an issue about knowledge of a closely related subject, the judge was entitled to sentence on the basis of an inference that Newcombe's knowledge extended to the fact that the gun was loaded. In these circumstances, Middleton's counsel's not having said anything about knowledge of the gun warranted an inference that no issue existed, on that point.

53 These conclusions are based on the view that the judge may treat points which, if they were in issue, would reasonably have been expected to be raised by defence counsel, as conceded. If the judge is not entitled to do that, then it appears to me that application of the Morrison principles under current sentencing procedures may become difficult and that more formal definition of issues might have to be prescribed.

54 As I have said, I agree with the orders proposed by the President.

55 THOMAS JA: The relevant facts and circumstances are contained in the President's reasons. I agree with the result proposed by the President namely that Middleton's application be refused and that Newcombe's application be allowed and that his sentence below be varied by replacing seven years with five and a half years. I also agree that the declarations of conviction of serious violent offences were appropriately made.

56 However I would wish to state my own conclusions concerning issues as to whether the conduct of these applicants should be viewed on the footing that each knew that Kidd would be using a loaded gun. The learned sentencing judge was entitled to find, as he did, that both Newcombe and Middleton knew that Kidd would be armed, and that the weapon would be a gun. It was common ground that the gun was in fact loaded and that Kidd in due course fired it. However actual knowledge by Newcombe and Middleton that the gun would be loaded was a narrower issue which was not raised below. The learned judge accordingly sentenced them on the broad footing that they knew that their co-offender would be armed, and no error occurred in this respect.

57 I have some doubt concerning the availability on appeal of the present point which was not raised below. The wider issue as to whether Newcombe knew that Kidd would be armed was raised, but it was withdrawn on Newcombe's instructions, followed by appropriate findings by his Honour that both men knew that Kidd would be armed. The Crown for example did not submit that these applicants knew that the gun was loaded and that therefore the sentence should be heavier on that account; and neither did the defence submit that they did not believe it was loaded and therefore they should have a lighter sentence. As I understand it, the point that is now raised is that in the absence of evidence sufficient to permit a finding of such knowledge, the sentences are too high. I do not understand there to be any submission that in the absence of such evidence it must be expressly inferred that the applicants did not know that the gun was loaded, and do not consider such an inference to be available.

58 Where there is evidence that an offender participates knowing that a gun will be used, one needs some basis upon which to make a further inference of knowledge or absence of knowledge that it will be loaded. If the issue is raised and pursued, questions such as "Did he inquire whether it was loaded? Was he mis-informed by a co-offender? Did he not bother to make any further inquiry about it?" may arise. Every case must rest on its own facts, but the inference of knowledge may be easier to draw in cases where an offender is heavily involved in the planning and preparation of the crime. When there is evidence that an offender knows that a gun will be used in a robbery, and no further evidence is tendered, it may well be that the most favourable view open from the offender's point of view is that he proceeded to participate without bothering to find out whether the gun would be loaded or not.

59 If a person is to be sentenced on the footing that he actually knew that the gun was loaded, then, under Morrison,[9] the onus is upon the Crown to prove that fact beyond reasonable doubt. If the offender is to be sentenced on the footing that he actually but erroneously believed that the gun was not loaded, then, under Morrison, the onus is on the defence to show that special fact on the balance of probabilities. In the absence of further evidence to justify a specific finding of knowledge or absence of knowledge, an inference may sometimes be justified along the lines indicated above, that is, that the offender agreed to participate without bothering to find out whether the gun would be loaded or not. If no such finding can be made, so be it. The court will simply proceed, as it did here, to sentence on such facts and inferences as are available.

60 The evidence in this case shows considerable involvement on Middleton's part in planning the robbery and some lesser degree of planning involvement by Newcombe, although it included his participating in reconnaissance of the target premises prior to the actual robbery. On my analysis it was appropriate that Newcombe fell to be sentenced on the footing that he knew that a gun would be used and, in the absence of specific evidence from the Crown or defence of actual knowledge of loading or non-loading it may properly be inferred that he was at least indifferent to whether it was loaded or not and was prepared to continue notwithstanding. Middleton's involvement in the planning however was central, and it defies belief that he did not know that the gun would be loaded.

61 In Middleton's case, whether one proceeds upon the broad view taken by the learned trial judge, or upon the somewhat more serious inference which, after examination of the evidence, I think is available, namely that he knew that a loaded gun would be used, the sentence of seven years imprisonment with a violent offender declaration was appropriate. It was however erroneous to impose the same sentence upon Newcombe. Such a sentence fails to recognise the very different levels of involvement of these two persons. In my view a sentence of five and a half years imprisonment with a violent offender declaration is appropriate in his case.

62 I agree with the orders proposed by the President.

[3] s 166(1)(c) Corrective Services Act 1988.

[4] CA No 4 of 1999, 8 June 1999; [1999] QCA 206

[7] CA No 238 of 1998, 18 September 1998; [1998] QCA 280.

[8] House v The King (1936) 55 CLR 508.

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