The offenders had known each other since at least June 2003, when they took part in an armed robbery at a Commonwealth Bank of Australia Branch at Blackburn, Victoria. The subjective material provided to the Court indicates that their association goes back at least some decades. The Melbourne armed robbery involved a fourth participant, Jeffrey Morgan. In the 2003 robbery, the four offenders used a stolen vehicle, a high performance four door BMW sedan which was driven to and from the location of the robbery by Mr Ilievski. While Mr Ilievski waited in the stolen BMW near the branch, Messrs Nolan, Kwu and Morgan entered the branch, smashed open the safe with a sledgehammer and removed a total of $160,000 from it. In 2005, the offenders Nolan, Ilievski and Kwu pleaded guilty before the County Court of Victoria to charges of armed robbery and theft of a motor vehicle.
I note that matter had a number of closely similar aspects to the current matter, in terms of modus operandi. However they have been sentenced for that offence committed in Victoria and, while it is relevant to the sentencing process today, they are not being re-sentenced in respect of that matter.
As at 6 June 2012, the offenders all lived in Sydney; they had close relationships with each other and were frequently in contact with each other.
The offenders' living arrangements were as follows:
1. Mr Nolan resided with his partner, Ms Taya Johnson, his son, Josh Nolan, and his son's girlfriend, Bianca Pavlovic at premises in Alice Street, Newtown.
2. Mr Kwu resided at premises in Percival Road, Stanmore, with his partner.
3. Mr Ilievski resided at his mother's residence in Richard Road, South Hurstville, and also at his father's residence in Hickson Road, Bankstown.
Mr Nolan was not employed as at June 2012. Mr Ilievski owned a car detailing business called "Avantgarde" at Hawthorne Parade, Haberfield. Mr Kwu worked as a self-employed courier for CEVA Logistics.
[2]
POLICE SURVEILLANCE OF THE OFFENDERS
The three offenders were under police surveillance as of May 2012. This involved:
1. Physical surveillance.
2. Interception of telephone services used by the offenders.
3. Covert placement of GPS tracking devices on a Holden Commodore sedan associated with Mr Nolan (BQ 93 AL) and a Mitsubishi sedan associated with Mr Ilievski (BVU 81U).
There is no information before the Court as to why any of the offenders were the subject of surveillance at that time: it is relevant that they were, however, in relation to the circumstantial case relied on by the Crown.
The surveillance enabled the police to ascertain the movements of the offenders (in some cases after the fact) and to listen to and record some of their telephone communications. The main categories of surveillance evidence led at the trial were:
1. Recordings and transcripts of intercepted phone calls and messages (Exhibit 47).
2. Maps containing vehicle tracker and cell tower data for a number of dates between 21 May and 6 June 2012 (Exhibits 45, 46, 48, 49 and 51 to 60).
3. Maps showing the coverage areas of various Vodafone mobile network antennae as at the relevant periods (Exhibit 33).
4. A printout of car tracker data (Exhibits 40, 41 and 42).
5. Information generated by officers conducting physical surveillance including surveillance logs (Exhibits 50 and 75).
Mr Nolan and Mr Ilievski changed their mobile phone numbers a number of times from May 2012 onwards. Between 16 May and 27 August 2012, Mr Nolan used seven different mobile numbers. Mr Ilievski had a number (ending in 555) registered in his name from 2010; however he used three additional services between 5 June and 27 August 2012. Mr Kwu had a number (ending in 232) registered in his name from 2009. He started using a new number (ending in 324) from 10 May 2012.
The frequent changes of mobile numbers by Mr Nolan and Mr Ilievski combined with the delay associated with detecting and placing a new service under interception meant that the police did not always have all relevant mobile servicers under interception. Relevant intercepted communications will be referred to later.
The details of the services associated with the three offenders and the dates of their interception, where applicable, are set out in Exhibit 34, which was admitted without objection. As shown in Exhibit 34, in a number of instances, the mobile services used by the offenders were registered in the names of other persons.
While the offenders openly discussed social matters in the telephone communications in May and early June 2012, they generally limited discussions of the planned robbery to face to face meetings. These meetings were often short in duration (to be referred to when dealing with the events of 22 May 2012 and 5 June 2012).
In the course of their telephone communications, the offenders at times used coded language (such as speaking in what is commonly referred to as Pig Latin). Furthermore instead of referring to each other by name they used nicknames, such as "Olsen", "Ols", "Hockboy", "Spinner" and "Banana". I accept that the face to face meetings, the use of coded language and the use of nicknames was designed to keep secret from the authorities the existence of the joint criminal enterprise and the detection of the identities of the persons involved.
[3]
Use of a stolen Mercedes and Sasha Wilson's garage
The getaway vehicle was a stolen dark grey four door 2009 AMG Mercedes C63. This was a high performance vehicle with an eight cylinder engine capable of achieving fast acceleration and a high top speed. The vehicle was the property of Mr Robert Klaric but had been stolen from the garage at this home at Mosman on 29 August 2011 by unknown persons. There was no evidence in the trial nor was it suggested by the Crown that the offenders were involved in the theft of the vehicle.
As at May 2012, Ms Sacha Wilson resided in a rented unit in Frederick Street, Ashfield. This was a small residential block with three garages accessible by a lane at the rear of the building. One of the garages belonged to Ms Wilson's unit. The telephone intercepts in Exhibit 47 demonstrate that on or before 20 May 2012, Mr Nolan had made arrangements with Ms Wilson to use her garage. The purpose of this arrangement was to store the Mercedes get-away vehicle in the garage before and after the armed robbery. Mr Nolan paid Ms Wilson the sum of $300 or $400 in cash for the use of the garage.
The Mercedes get-away vehicle was parked in Ms Wilson's garage late at night on a date before 6 June 2012. In the early afternoon of 6 June 2012, Mr Ilievski and Mr Nolan travelled in the vehicle to Prospect where they met Mr Kwu about one hour before the armed robbery.
After the robbery, the vehicle was left in the area near the bank before being recovered later that night by the three offenders, who then returned the vehicle to Ms Wilson's garage. Police discovered the vehicle at that location on 23 June 2012 and placed a tracker on it on 25 June 2012. On 27 June 2012, the vehicle was driven from the garage by Mr Ilievski. (The movements of the vehicle from 27 June onwards will be referred to later.)
[4]
22 MAY 2012
On or before 22 May 2012, the three offenders entered into a joint criminal enterprise to carry out the armed robbery.
Mobile Network data in the form of recorded contact with the Vodafone Network antennae for the services used by Mr Nolan and Mr Ilievski shows that on the afternoon of 22 May 2012 the two offenders travelled together to Western Sydney, travelling through Prospect at 1.47pm. Mr Nolan's phone made contact with mobile network cells in Seven Hills from 3.42pm to 4.11pm (Exhibits 48 and 49).
Mr Nolan and Mr Ilievski travelled back east from Seven Hills; at 4.12pm, Mr Nolan called Ms Wilson. He arranged to visit her at her unit at Ashfield later in the evening. Mr Nolan and Mr Ilievski parted ways sometime after this call (Exhibit 47).
In a coded conversation at 8pm Mr Ilievski and Mr Nolan agreed to meet in the lane behind Ms Wilson's residence. Mr Nolan visited Ms Wilson at 8.16pm and Mr Ilievski picked him up from the lane shortly after this.
Mr Ilievski and Mr Nolan then drove to Newtown where they met with Mr Kwu at a Caltex petrol station on Enmore Road, close to the intersection of Kings Street and Enmore Road and the Oporto business. Surveillance officers observed Mr Ilievski's Mitsubishi and Mr Kwu's Ford van at the petrol station at 9.45pm. The meeting of the three offenders concluded at 9.51pm, having lasted between two and five minutes.
Later, Mr Nolan and Mr Ilievski came into possession of New South Wales registration plates, AZ26MK. These plates had been removed from a Toyota Yaris hatchback which had been parked on Church Street, Drummoyne.
Mr Jonathan Shingler was the user of the Toyota Yaris: he had parked the car on Church Street near his then residence. He last observed the number plates on the car at 9pm on the night of 22 May 2012. He noticed the plates were missing at 7pm on 23 May 2012. He contacted the NSW Police Assistance Line and reported the matter (Exhibit 68).
Vodafone network data for Mr Nolan and Mr Ilievski's mobile services (Exhibits 48 and 49), show that the two phones made contact with cell towers in Balmain south-east of Drummoyne at 11.27pm on 22 May 2012. Mr Nolan's phone then made contact with a cell in Drummoyne at 11.35pm. The coverage area of this cell tower includes the location at which Mr Shingler's Toyota Yaris was parked at the time.
The registration plates AZ26MK were affixed to the Mercedes getaway vehicle at the time of the armed robbery at Seven Hills, where they were observed and recorded by an eye witness, Ms Loani Sim, an employee of Woolworths on a rest break.
[5]
27 MAY - 1 JUNE 2012
Mr Nolan and Mr Ilievski again travelled together to the area of Seven Hills on the afternoon of 27 May 2012 (Exhibits 51 and 52).
On the night of 29 May 2012, Mr Nolan and Mr Ilievski travelled separately to the Seven Hills area (Exhibits 53 and 54). Their recorded conversation at 9.44pm in which they discussed the location of their meeting indicates that they were keeping the location of their meeting a secret, or at least it was not disclosed in the telephone call. At 9.49pm, Mr Ilievski's phone made contact with a cell tower which covered inter alia the Centro Shopping Centre.
The telephone intercepts show that the three offenders met on the evening of 30 May 2012 at Mr Kwu's residence and that on 1 June 2012, Mr Nolan and Mr Ilievski met at the McDonald's restaurant at Stanmore (Exhibit 47).
[6]
5 JUNE 2012
There are a number of activities in furtherance of the joint criminal enterprise on 5 June. These included: efforts by Mr Nolan to arrange for a fourth participant (Mr Acura Niuqila) to take part in the planned robbery; a meeting of the three offenders at Mr Kwu's residence at 7.49pm and a trip to Seven Hills by Mr Nolan and Mr Ilievski, during which Mr Ilievski's vehicle conducted surveillance of the area in which the Mercedes getaway vehicle was left after the armed robbery.
On or before 5 June 2012, Mr Ilievski obtained a new telephone number (ending in 271) for the purpose of communicating with Mr Nolan and Mr Kwu. That service, registered with the Optus network, was not under interception until 7 June 2012. The police were not able to obtain cell tower data for the dates of 5 and 6 June 2012 for that service, which means that the movement details on 5 and 6 June could not be ascertained.
However, call charge records show that Mr Ilievski used number 271 primarily to communicate with Mr Kwu's number ending in 324 and Mr Nolan's number ending in 528 (Exhibit 44); at the same time Mr Ilievski continued to use his number ending in 555 for contact of a social nature.
As referred to above, Mr Ilievski had the service ending in 555 in his possession until about 5.55pm on 5 June 2012. His whereabouts up until that time can be ascertained (see Exhibit 56). Mr Ilievski's whereabouts after 7.40pm can also be ascertained by reference to the trackers on Mr Nolan's Commodore and Mr Ilievski's Mitsubishi.
Mr Nolan started using a number ending 528 on or about 1 June 2012. This service was intercepted from 6 June 2012. Call charge records for the service are contained in Exhibit 36. These call charge records contain some cell tower information which the police were able to plot on a map showing Mr Nolan's movements on 5 June 2012 (Exhibit 55).
Since Mr Kwu's service ending 324 was subject to surveillance from 5 June, telephone calls between him and Mr Nolan using the number 528 or Mr Ilievski using the number 271 were intercepted and recorded by police. Furthermore, Mr Kwu's movements throughout the day were plotted by the police by reference to cell tower data for service 324 (Exhibit 57).
In the morning of 5 June 2012, Mr Ilievski sent Mr Kwu a text message from his new number (271) stating: "Bro cal me on this num. Hokboy."
In the early afternoon, Mr Nolan and Mr Ilievski travelled separately to Seven Hills. They met at about 1.48pm at or in the vicinity of the home of Mr Nolan's parents on Rowley Street, Seven Hills. This location is a short distance from Centro Shopping Centre. Sometime after this meeting, Mr Nolan and Mr Ilievski parted ways.
Mr Ilievski drove his Mitsubishi to Valediction Road, Kings Park, where he parked the vehicle at 2.18pm. The car remained at this location until 8.32pm. Mr Joseph Sami, who was an associate of Mr Ilievski, gave evidence in Mr Ilievski's case. He was the manager of a factory located in an industrial estate on Garling Road, Kings Park, near Valediction Road. Mr Sami testified that Mr Ilievski visited him from time to time in May and June 2012.
Cell tower data from Mr Ilievski's service ending 555 shows that after leaving his car at Kings Park, he travelled to the areas of Casula (3.15pm), Kingsgrove/Roselands (3.30pm-4.05pm), Parramatta/Harris Park (5.27pm) and Bankstown (5.51pm-5.55pm). Mr Ilievski left the service ending 555 at his father's home at Bankstown at 5.55pm (Exhibit 56).
After meeting with Mr Ilievski at Seven Hills, Mr Nolan travelled in his vehicle to a number of locations including Newtown (3.06pm-3.18pm), Kensington (3.47pm-3.57pm), East Gardens (4.12pm-6.22pm) and Darlinghurst/Surry Hills (6.42pm-7.19pm) (Exhibit 54).
Throughout 5 June, Mr Kwu was making deliveries, remaining mostly in the Eastern Suburbs of Sydney (Exhibit 57).
At 5.34pm, Mr Ilievski spoke to Mr Kwu telling him that he was at Parramatta. Mr Ilievski said that "something bad" had come up. He went on to say "I've got B calling me now". This was a reference to Mr Nolan, whose nickname was "Bosty".
Mr Ilievski spoke to Mr Kwu at 7.18pm. Mr Ilievski stated that he was waiting for "fucking Einstein" (a reference to Mr Nolan) who had left Mr Ilievski at a friend's house and had gone to pick up his girlfriend. Mr Ilievski said that Mr Nolan was "coming back" and "I'll tell you when I see you". Mr Kwu said, "I'll see youse when you come around, I'll be at home". Mr Ilievski stated "you might have to give me a lift somewhere man I've got to pick my car up".
There were a number of text messages and calls between Mr Nolan (using service 528) and Mr Ilievski (using service 271) during the afternoon and evening of 5 June 2012. The content of these communications is not available because, as previously noted, the two services were not then the subject of interception.
Mr Nolan and Mr Ilievski continued to communicate until 7.33pm. At about 7.40pm, Mr Nolan picked Mr Ilievski up from Ashfield and the two of them drove to Mr Kwu's residence at Petersham. The three offenders met at Mr Kwu's residence from about 7.48pm to 7.58pm.
The evidence demonstrates that Mr Nolan tried to arrange for Mr Acura Niuqila to join as the fourth man in the planned armed robbery. Mr Nolan operated under the assumption that Mr Kwu would make those arrangements with Mr Niuqila.
Mr Niuqila lived at Pyrmont. At 2.43pm he sent a message to Mr Kwu stating "call me". In an intercepted call at 7.26pm Mr Kwu told Mr Niuqila not to answer his phone if "the boys" (a reference to Mr Nolan and Mr Ilievski) called him. Mr Niuqila said that they had not contacted him.
As noted above, Mr Nolan and Mr Ilievski met with Mr Kwu at his residence from 7.48 to 7.58pm. At 7.57pm Mr Nolan called Mr Niuqila. The call went unanswered. Mr Niuqila tried to call Mr Nolan but he did not have sufficient credit on his service. Mr Nolan sent a text message to Mr Niuqila at 7.58pm stating "call me urgent".
When Mr Nolan and Mr Ilievski left Mr Kwu's residence at 7.58pm, they headed to Kings Park to pick up Mr Ilievski's vehicle which had been parked there since 2.18pm. Mr Nolan called Mr Niuqila again at 7.58pm. During this call Mr Nolan asked Mr Niuqila to "ring M...the other fellow that rung you before" (references to Mr Kwu).
At 8.01pm, Mr Nolan called Mr Kwu and told him, "I just spoke to the Fijian, do you want to go and see him?...we're only going the other way". "The Fijian" was a reference to Mr Niuqila who is of Fijian background. Mr Kwu said "Alright I'll give him a ring". Mr Kwu did not call Mr Niuqila. Mr Niuqila sent messages to Mr Kwu stating "call me" at 8.04pm and 8.21pm.
Tracker data from Mr Nolan's and Mr Ilievski's cars (Exhibits 40 and 41) demonstrates that Mr Nolan drove Mr Ilievski to Valediction Road, Kings Park, where they picked up Mr Ilievski's Mitsubishi at 8.32pm. After this time, Mr Nolan's vehicle was driven back to his residence at Newtown by an unknown third party (arriving at Alice Street at 9.14pm). As referred to below, Mr Nolan remained with Mr Ilievski.
Data from the tracker on Mr Ilievski's Mitsubishi shows that once it left Kings Park, the vehicle travelled to Seven Hills arriving in that area at 8.44pm (Exhibit 40). Over the next 45 minutes the Mitsubishi travelled in a circular fashion around a number of suburban streets south east of the Centro Shopping Centre. The car made short stops in areas to the east and west of Best Road, about 1.5 kilometres south east of the shopping centre. The stops included:
1. 8.50 to 9.57pm Onslow Street (near Abigail Street and Carrington Street).
2. 9.06 to 9.18pm Abigail Street (near 6th Avenue and Best Road).
3. 9.21 to 9.25pm Garda Street (near Garonne Street and McKenzie Boulevard).
I accept that the purpose of the abovementioned movements was to identify a location where the Mercedes getaway vehicle could be left immediately after the robbery at the NAB branch.
At 9.29pm, Mr Ilievski's vehicle left the Seven Hills area. At 9.32pm the vehicle was travelling south on Blacktown Road/Prospect Highway towards an on ramp for the M4 motorway at Prospect. At the same time, Mr Nolan's service 528 made contact with a Vodafone network antenna which had a coverage area including Blacktown Road/Prospect Highway (Exhibit 55 and Exhibit 33).
I accept that this demonstrates that Mr Nolan and Mr Ilievski were together.
At 9.58pm, while Mr Ilievski and Mr Nolan were en route towards Newtown, Mr Nolan called Mr Kwu. The call went unanswered. At 9.59pm Mr Nolan spoke to Mr Niuqila asking if "M" (Mr Kwu) had been to see him or had called him. Mr Niuqila answered in the negative. Mr Kwu tried calling Mr Niuqila at 9.59pm but the line was busy. From 9.59pm to 10.03pm Mr Nolan called Mr Kwu three times but all the calls diverted to an answering machine.
At 10.04pm. Mr Nolan again spoke to Mr Niuqila stating (in reference to Mr Kwu) "fucking idiot man...fucking pissing me off...leave it with me". Mr Nolan then sent a text message to Mr Kwu stating "What are you doing bro".
Mr Ilievski's Mitsubishi arrived at Newtown at 10.45pm, where Mr Ilievski dropped Mr Nolan off at his residence, the vehicle then travelled to Mr Ilievski's father's home at Bankstown where it arrived at 11.24pm.
[7]
Communications and meetings in the morning/early afternoon of 6 June 2012
There were a number of communications and meetings in the morning and early afternoon of 6 June 2012 which indicate ongoing co‑ordination by the three co-offenders towards the execution of the armed robbery.
1. In a phone call at 9.33am Mr Kwu told Mr Nolan "that he had tried to get a hold of Banana" (Mr Niuqila) but that he was not answering his phone. Mr Nolan said that he had spoken to Mr Niuqila and that Mr Niuqila was waiting to hear from Mr Kwu. Mr Kwu said that he would try again.
2. At 9.34am, Mr Nolan spoke to Mr Ilievski, informing him that he had spoken to the "spinner" (Mr Kwu) and that Mr Kwu had told him that he had been unable to reach Mr Niuqila. During this phone call, Mr Ilievski asked Mr Nolan to "organise old mate there. Fuck'n, I don't know, pick us up...you know what I mean...got to be organised."
3. At 9.36am, Mr Kwu sent a text message to Mr Niuqila stating, "I threw off n said I couldn't get a hold of u. Just say your fone playin up."
4. At 9.37am, Mr Nolan twice tried to call Mr Niuqila but the calls were diverted to voicemail.
5. At 9.38am, Mr Nolan again spoke to Mr Kwu and told him that he was still unable to make contact with Mr Niuqila. Mr Nolan said Mr Niuqila "kept say'n he was wait'n for you." Mr Kwu asked, "What about the other cuzzo?" Mr Nolan replied, "Too late now." Mr Kwu agreed to visit Mr Nolan at Newtown within one hour.
6. At 10.36am, Mr Nolan called Mr Niuqila and the call diverted to voicemail. This was the last contact by any of the offenders with Mr Niuqila's service on 6 June 2012. Mr Niuqila's service remained in the Pyrmont/Sydney CBD area throughout the day (Exhibit 89).
7. Mr Kwu drove to Newtown where he met Mr Nolan at a café at 10.40am. Mr Nolan called Mr Ilievski at 10.40am telling him, "M's coming to see me now...I'll give you a call in five minutes."
8. At 10.45am, Mr Nolan called Mr Ilievski who told him that he had to, "Get the house keys off [my mate]." At the time of this call, Mr Ilievski was driving his Mitsubishi towards Prospect where he arrived at 11.07am. From 11.09 to 11.22am, the Mitsubishi was stationary at Stoddart Road, Prospect. This location is a short distance from Kennards Hire store at Rowood Road, Prospect, as referred to later. The three offenders met near the Kennards Hire store at Prospect at approximately 1.42pm, one hour prior to committing the armed robbery.
9. Mr Nolan called Ms Wilson at 10.47am telling her that he would go to her home. In communications between 11.12am and 11.41am, Mr Nolan told Mr Ilievski that he was waiting for him at Mr Nolan's friend's house, "near Bunnings." This was a reference to Ms Wilson's unit which was located a short distance from the Bunnings store at Ashfield. Mr Ilievski told Mr Nolan, "I'll see you later, right."
10. Mr Ilievski arrived at Ashfield in his Mitsubishi at 11.43am. The car remained in the vicinity of Ms Wilson's residence until 12.12pm.
11. While Mr Nolan and Mr Ilievski were both at Ashfield at 12.05pm, Mr Nolan sent a text message to Mr Kwu asking, "What time?" Mr Kwu replied, "Bout 130, cuzz, near Kennards." This was a reference to the Kennards Hire store at Stoddard Road, Prospect.
12. At 12.12pm, Mr Ilievski made a short trip to Haberfield before returning to Ashfield at 12.35pm.
Ms Wilson left her unit sometime after Mr Nolan's arrival. At 12.36pm, Josh Nolan, Mr Nolan's son, arrived at the unit and Mr Nolan let him in.
Having returned to Ashfield at 12.37pm, Mr Ilievski parked his Mitsubishi a short distance from Ms Wilson's garage. The Mitsubishi remained at this location until 4.19pm. Mr Ilievski left his phone ending 555 either in or near the car. The phone then made automated periodic registrations on the network at 12.32 and 2.32pm. He had also received a call which went unanswered at 3.10pm.
Mr Nolan and Mr Ilievski left Ashfield in the Mercedes getaway vehicle and headed towards Prospect by approximately 1.06pm. Mr Ilievski kept service 271 with him in order to maintain contact with Mr Kwu.
Mr Nolan left his phone ending 528 with Josh Nolan. The phone remained in the Ashfield area, where it continued to make contact with local cell towers until 4.40pm.
At 1.06pm, Mr Kwu sent a message to Mr Nolan's number 528 stating, "U on the way?" At 1.09pm, having received no reply from Mr Nolan, Mr Kwu rang Mr Nolan's phone. The call was answered by Josh Nolan who told Mr Kwu that Mr Nolan was "Onegay" (Pig Latin for gone) and "On his way." Mr Kwu replied, "Oh, okay, sweet."
[8]
Mr Nolan's efforts at creating a possible alibi
In a number of telephone communications on 6 June 2012, Mr Nolan told his friends that he had a sore ankle and that he was staying at a friend's home at Ashfield. A medical certificate dated 30 May 2012, which was tendered on Mr Nolan's behalf (Exhibit N2) indicates that Mr Nolan had suffered a fall on or about 23 May 2012. Following an examination and an x-ray on 30 May 2012, Mr Nolan's doctor observed that Mr Nolan's ankle was very swollen, but that the swelling was not very painful and that the injury did not involve fracture. The jury clearly rejected the proposition that Mr Nolan had remained at Ashfield with a sore ankle and therefore did not participate in the armed robbery at Seven Hills on the afternoon of 6 June 2012.
Mr Nolan arranged for his partner, Ms Taya Johnson, to make a deposit into his NAB account on 6 June 2012 at a time proximate to the time of the armed robbery. Ms Johnson drove Mr Nolan's Commodore to the NAB branch at Eastgardens where she made a deposit of $1,200 cash using Mr Nolan's Bankcard at 2.05pm (Exhibits 37-39). The use of Mr Nolan's card meant that Ms Johnson was not required to complete a deposit slip, which would have required her to insert her name as the person making the deposit. She was recorded on the bank's CCTV making the deposit.
At 2.12pm, Ms Johnson rang Mr Nolan's number 528 but the call went unanswered. A reply sent from Mr Nolan's phone read, "I am laying down, my ankle is sore, I can't talk." Ms Johnson replied, "I was just ringing to say I went to the bank." This message was not sent by Mr Nolan as he was already in the area of Seven Hills.
As noted previously, Mr Nolan and Mr Ilievski had left Ashfield in the Mercedes getaway vehicle by 1.06pm. The following exchange took place between Mr Kwu, using service 324, and Mr Ilievski, using service 271, between 1.10pm and 1.42pm:
Mr Ilievski (at 1.10pm) - "10 min late".
Mr Kwu (at 1.28pm) - "Same",
Mr Ilievski (at 1.28pm) - "Here".
Mr Kwu (at 1.31pm) - "Halfway down the M4"
(At this point Mr Kwu's phone made contact with cell towers in the vicinity of Rosehill near the M4 motorway - Exhibit 60 and 33).
Mr Kwu (at 1.42pm) - "I am here"
(At this point Mr Kwu's phone made contact with the cell tower at Prospect - Exhibit 60 and 33).
Mr Ilievski (at 1.42pm) - "3min".
The three offenders met at about 1.45pm near the Kennards Hire Store at Prospect and then made their way to Seven Hills. Mr Kwu's phone made contact with an antenna at Girraween (between Prospect and Seven Hills) at 1.48pm and an antenna at Seven Hills at 1.51pm. The Seven Hills antenna has an area of coverage which includes parts of Abigail and Carrington Streets (Exhibit 60 and 33). Mr Ilievski's Mitsubishi had travelled along these streets late on the night of 5 June 2012.
The three offenders travelled to the Centro Shopping Centre at Seven Hills in the Mercedes getaway vehicle with Mr Ilievski as the driver.
To access the shopping centre, the offenders drove along the Hills Crescent, running east to west along the northern/rear entry of Centro. From the Hills Crescent, the offenders drove into a small parking area which was immediately adjacent to the rear of the complex. Automated sliding doors at the rear of the shopping centre provided entry into the complex from this parking area and immediately in sight of the NAB branch.
Both Centro and the NAB operated CCTV cameras. One of the CCTV cameras inside the Centro provided a view of the sliding doors as well as the area immediately outside. Footage from this camera shows the Mercedes getaway vehicle arrive and stop in the parking area at about 2.37pm (Exhibit 4, 4.1 - adjusting the time for a delay on this camera of about 5 minutes and 30 seconds). At this time, the footage depicts two Woolworths employees, Ms Loani Sim and Ms Nicole Regner, who were walking out of the Centro on their way to have a cigarette break. Ms Sim and Ms Regner walked a short distance from the Mercedes while it remained stationary.
The Mercedes remained in position for about 40 seconds before it continued forward through the parking area and re-joined the Hills Crescent. The Mercedes returned to the same spot in the parking area at 2.41pm. This time, it reversed back towards a set of bollards which were located between the parking area and the Centro's automated glass doors. When the car came to a stop, part of its rear section remained visible on the Centro CCTV camera located inside the complex. The part remaining visible was the rear near side or passenger side tail light assembly.
Ms Sim and Ms Regner observed the Mercedes reverse and park against the bollards. They also observed aspects of the events that followed.
Shortly after the arrival of the Mercedes a witness, Jason Eddie, was driving his car looking for parking in the area. Mr Eddie noticed the dark grey four door Mercedes sedan not far from the glass doors at the rear of the shopping centre. He recognised it as a Mercedes C63. In his evidence, he confirmed that the vehicle he observed was consistent in appearance with the vehicle depicted in photographs taken by the police of the vehicle, after it had been later recovered. Ms Regner had also noticed the nature of the vehicle as being in her view too up market for her expectation of vehicles that she would normally associate with the residents of Seven Hills, and because of her interest in motor vehicles.
At 2.42pm Mr Nolan disembarked from the rear door on the passenger side of the vehicle. He was wearing a grey hoodie sports top, navy blue Adidas tracksuit pants, grey gloves and a black balaclava. He was armed with a loaded Norinco 9 mm calibre pistol.
Mr Nolan walked into the Centro. He entered the NAB branch at 2.42 and 34 seconds. He walked towards Ms Joanne Morgan, who was assisting a customer (Mr Joseph Fonseka) in the foyer of the branch. Seated nearby was Ms Deborah Matthews, the Branch Manager.
Mr Nolan pulled the pistol out of his right front pocket and pointed it directly at Ms Morgan. He grabbed her and directed her to a waiting area in front of the teller counters at the rear of the branch. Mr Fonseka panicked and ran out of the branch. He went immediately to a nearby Woolworths store and called Triple 0.
Mr Nolan took Ms Morgan into the waiting area in front of the tellers. He directed her to a security door which provided access to the teller area. The door was self-locking and could only be opened by inputting a code into a pin pad next to the door. Mr Nolan directed Ms Morgan to open the security door, stating words to the effect of "This is a hold up, open the door".
Ms Morgan made a number of unsuccessful attempts to open the door using her PIN. She was unable to open it as Ms Matthews had activated the silent alarm which disabled all staff pin codes within the branch.
Mr Nolan had the gun directed at Ms Morgan and was becoming increasingly agitated. Ms Morgan looked at Mr Nolan and saw him handling the gun. She heard a pop sound and saw a "piece of gold string" which she perceived as a misfire. The evidence led at the trial (including the absence of any ejected rounds near the security door and a subsequent discharge of the pistol in the teller area) establishes that the pistol did not misfire. Instead it appears that Mr Nolan racked the pistol while facing Ms Morgan, thereby moving a round from the pistol's magazine into the chamber of the weapon, where it was ready to be fired.
Mr Kwu had disembarked from the rear door on the driver's side of the Mercedes shortly after Mr Nolan. He was wearing a navy blue hooded top, black gloves and a white facial covering which came up to the bridge of his nose and also down to just above his eyebrows. He entered the NAB branch at 2:42:49, carrying a large sledgehammer with a red and black handle, and a black leather bag.
As Mr Kwu entered the branch, he directed Ms Matthews to the security door where Mr Nolan had taken Ms Morgan. At this time, also present in the waiting area in front of the tellers, were a female customer and Mr John Bercich.
Ms Morgan was still trying to open the door and screaming "Open the door, open the door". As Ms Matthews approached, she heard Mr Nolan say to Ms Morgan "Open the door or I'll shoot you". Ms Morgan told Ms Matthews that she was unable to open the door. Ms Matthews then stepped in and used her PIN but was also unsuccessful.
The teller area was in an L‑shape with three counters. Teller counters 1 and 2 were on the long tail of the L‑shape with counter 1 immediately next to the security door. Counter 3 was effectively around the corner along on the shorter arm of the L‑shape.
Having been unable to open the security door, Ms Matthews yelled out to Ms Kristine Barnes‑Suluape, who was the head teller, and located at counter 1, "Kristine, open the door".
Ms Barnes‑Suluape threw her work keys behind a nearby set of drawers, opened the security door and crouched on the ground near the door. Ms Ekta Suri, who had been working at counter 2, crouched on the ground between counters 1 and 2, not far from Ms Barnes‑Suluape. Ms Marian Girgis, who had been working at counter 3, hid on the ground under that counter.
Mr Nolan rushed into the area as soon as Ms Barnes‑Suluape opened the door. He yelled "On the floor, on the floor". At about this time security screens inside the teller area deployed and closed the counters off from the foyer area. Mr Nolan tried to open a set of drawers containing cash between counters 1 and 2, but the drawers were locked. He asked Ms Suri and Ms Barnes‑Suluape "Where are the keys? Give me the key! Give me the keys!" Ms Suri and Ms Barnes‑Suluape both said that they did not have any keys. Ms Suri and Ms Barnes‑Suluape observed a pistol in Mr Nolan's hand.
Mr Nolan fired a single round from the pistol. The bullet became lodged in a wall/partition inside counter 1, effectively between the counter and the security door. The fired cartridge casing, which was expelled from the ejection port of the gun, fell on the ground near Ms Suri.
Mr Kwu stood in the doorway holding the security door open and keeping watch. He directed Ms Matthews, Ms Morgan and the two customers to get on the ground. Mr Bercich and the female customer fled out of the branch while Ms Matthews and Ms Morgan crouched on the ground.
Mr Kwu asked Ms Matthews and Ms Morgan "Where are the keys?" Ms Matthews replied "We don't have the keys but the safe's on time delay".
Mr Nolan used a large screwdriver with a two-pronged tip to force open the teller drawers between counters 1 and 2, breaking the lock mechanism on the drawers in the process. He removed an amount of cash from these drawers before moving to a set of drawers near counter 3. He asked Ms Girgis for the keys. She remained on the ground, afraid and unable to speak.
While Mr Nolan and Mr Kwu were inside the branch, Mr Ilievski remained in the Mercedes, which was still parked near the bollards outside. Ms Regner called Triple‑0 and informed them that she thought a robbery was in progress. Ms Sim walked towards the rear of the Mercedes in order to record its registration plate and wrote down the registration AZ 26 MK on a newspaper. This registration was consistent with the registration plates which had been removed from Mr Shingler's Toyota Yaris on 22 May 2012, as previously referred to.
When Ms Sim approached the vehicle, she observed that it made a slight movement. This movement of the car was recorded in the CCTV footage from the Centro camera (Exhibits 4 and Exhibit 4.1). Given that the car had been stationary up to this point, its movement confirms that there was a driver in the vehicle. The jury accepted that Mr Ilievski was the driver of that vehicle.
Within the branch, Mr Nolan placed the cash he had removed from the teller drawers into the black sports bag which Mr Kwu was carrying. The two men then ran out of the branch, Mr Kwu in front of Mr Nolan.
Also present in the branch (in a semi‑open office area with a partial view of the foyer) were financial adviser, Ms Jyoti Kamath, and her customer, Ms Anne Hyde. They had heard a commotion in the foyer of the bank after Mr Nolan and Mr Kwu entered. Ms Kamath heard one of the offenders say "Get down on the ground. Don't push any buttons". Ms Kamath and Ms Hyde went to the ground and observed the rest of the events from that position.
All the persons present in the branch heard the firing of the pistol. Ms Hyde heard screams after the gunshot.
Mr Kwu and Mr Nolan exited the NAB branch at 2.44:07. As they ran out of the branch, they were observed by Mr Tony Camilleri, who was in the Centro's common corridor outside the branch. As the two offenders ran towards the Mercedes, which was still near the bollards, Mr Camilleri followed them on foot. He saw that the two men entered the stationary sedan, one on each side. He observed that the man who entered the vehicle on the driver's side (Mr Kwu) entered the rear door, consistent with there being a driver in the car.
Ms Connieann Hall was outside the shopping centre, near Ms Sim and Ms Regner. She saw the two offenders return to the vehicle and observed them enter the rear doors on either side of the vehicle, also consistent with the presence of a driver.
As soon as Mr Nolan and Mr Kwu had re-entered the Mercedes, it sped off in an easterly direction towards the Hills Crescent.
Mr Kwu's phone then made contact with cell towers at Girraween, south of Seven Hills (at 3.06pm), Silverwater (at 3.19pm), Homebush (at 3.22pm) and Five Dock/Canada Bay (3.28pm) consistent with Mr Kwu travelling back east after the completion of the armed robbery.
Mr Kwu's phone made contact with an antenna near Ashfield at 4.21pm. Mr Nolan returned to Ms Wilson's unit at Ashfield at 4.22pm, when he spoke to Ms Johnson, using his phone ending 528. Ms Johnson, who was driving Mr Nolan's Commodore, picked him up from Ashfield at 4.40pm.
Mr Ilievski's Mitsubishi, which had been parked near Ms Wilson's unit, moved off at 4.19pm. Mr Ilievski drove to his car detailing shop at Haberfield, where he stopped from 4.22 to 4.29pm.
While visiting his shop, Mr Ilievski handed his phone ending 555 to Mr Scibberas, an employee who resided at Flora Street, Narwee. Mr Scibberas took the phone home after he finished work. The phone then made automated periodic registrations with a cell tower at Narwee at 5.01pm, 7.01pm, 9.01pm and 11.01pm. When Mr Kwu called this number on 7 June 2012 at 12.14pm, Mr Scibberas answered the call, stating "I'm stuck with his (Mr Ilievski's) phone...He's on the other one."
[9]
Two further trips to Seven Hills
After leaving Haberfield at 4.29pm on 6 June 2012, Mr Ilievski drove his Mitsubishi back to Seven Hills where he arrived at 5.20pm. He again conducted a series of circuits, driving around the area of Abigail Street and Carrington Street. I accept the purpose of this trip was to check on the status of the Mercedes vehicle, which had been left in the area immediately after the robbery. After driving around for about 3 minutes, Mr Ilievski's Mitsubishi returned back east.
Telephone intercepts and cell tower data for Mr Nolan's service 528 and Mr Kwu's service 324, as well as the data from the tracker attached to Mr Ilievski's Mitsubishi, establish that the three offenders returned to Seven Hills together on the night of 6 June 2012:
1. At 8.19pm, Mr Ilievski picked up Mr Nolan from his residence at Newtown and they drove to Mr Kwu's residence at Stanmore where they arrived at 8.24pm;
2. The three offenders left Mr Kwu's residence at about 8.52pm and travelled to Ashfield where Mr Ilievski's Mitsubishi stopped in the lane behind Ms Wilson's building from 9 - 9.04pm);
3. Mr Ilievski's Mitsubishi then travelled towards Seven Hills. As the vehicle drove through Prospect at 9.23pm, both Mr Nolan and Mr Kwu's phones made contact with a cell tower in that area;
4. The Mitsubishi arrived in Seven Hills where it made a stop on Carrington Street from 9.51pm to 10.03pm;
5. Mr Nolan's service 528 and Mr Kwu's service 324 made contact with the Seven Hills antenna at 9.41pm (Mr Kwu), 9.42pm and 10.02pm (Mr Nolan). The coverage area of this antenna includes a section of Carrington Street as well as the nearby Abigail Street;
6. Calls made by Mr Kwu to Mr Ilievski shortly after the Mitsubishi resumed its journey back east (at 10.04pm and 10.05pm) show that Mr Kwu was coordinating his movements with Mr Ilievski (at this stage the offenders were travelling back in two vehicles);
7. The purpose of this return trip to Seven Hills was to pick up the Mercedes getaway vehicle which had been left in or near the Abigail Street/Carrington Street area and apparently not yet discovered as having been involved in the robbery;
8. The three offenders returned to Ashfield and returned the Mercedes into Ms Wilson's garage. Mr Ilievski's Mitsubishi made a stop in the lane behind Ms Wilson's building from 10.28pm to 10.35pm;
9. Mr Ilievski then dropped off Mr Kwu and Mr Nolan to their respective homes. The Mitsubishi first travelled to Newtown (dropping off Mr Nolan at about 10.52pm) and then to Stanmore (dropping off Mr Kwu at about 11.01pm);
10. Mr Ilievski then drove the Mitsubishi to his mother's residence at South Hurstville, where he arrived at 11.38pm.
[10]
ADDITIONAL EVIDENCE COLLECTED AFTER THE ARMED ROBBERY
[11]
Movements of the getaway vehicle from 25 June to 27 August 2012
After 6 June 2012, Mr Ilievski continued to manage the storage of the Mercedes getaway vehicle with some assistance from Mr Nolan.
After 6 June 2012, the vehicle initially remained in Ms Wilson's garage. In an intercepted call on 15 June 2012, Mr Nolan asked Mr Ilievski for an additional $150 to give Ms Wilson. When Mr Ilievski said that he did not have the funds, Mr Nolan said, "I'm going to tell her to fucking, that's got to go, then...that thing's got to go then."
On 20 June 2012, Ms Wilson sent a message to Mr Nolan stating in part, "Can u please get my garage key off Tony my grandma is moving furniture in there on the weekend."
The police located the Mercedes in Ms Wilson's garage on 23 June 2012. At this stage, the vehicle had Victorian number plates, YTC445, attached to it. That registration had been associated with a four door 2008/2009 Mercedes CL63 which was available for sale in Melbourne. The registration had been cancelled on 12 May 2012 (Exhibit 71.)
On 25 June 2012, the police installed a discreet camera which was facing Ms Wilson's garage. They also installed a tracking device on the Mercedes.
Footage from the camera showed Mr Ilievski accessing the garage and driving the vehicle away on 27 June 2012 at about 8.01pm (Exhibit 62). As set out in the agreed facts (Exhibit 67), Mr Ilievski drove the vehicle to Narwee where he stored it in Mr Sciberras's garage. Mr Ilievski told Mr Sciberras that he needed to store the Mercedes for a mate.
Sometime after leaving the vehicle in Mr Sciberras's garage, Mr Ilievski returned to change the registration plates on the car. On 10 August 2012, the police observed the car to have NSW registration plates, CEL52K. This registration was associated with a black four door 2012 AMG Mercedes C63 which was owned by Mr John Bertuzzi (Exhibit) 72).
In August 2012, Mr Sciberras asked Mr Ilievski to remove the vehicle from his garage. On 23 August 2012, Mr Ilievski contacted Damian Burns, a car mechanic at Peakhurst, and arranged to have the Mercedes serviced and garaged there for a few days. Mr Ilievski asked Mr Nolan for assistance but Mr Nolan was unavailable.
On the evening of 23 August 2012, Mr Ilievski dropped the Mercedes off at Mr Burns' workshop. On 27 August 2012, Mr Nolan drove Mr Ilievski to Mr Burns' workshop to pick up the vehicle. When the vehicle was observed by the police on this day, it had the registration plates YLA332. This registration was associated with a grey four door 2011 Mercedes C63 owned by Mr Zhou Li who was located in Melbourne (Exhibit 73 and 74).
Mr Ilievski remained in control of the vehicle until the evening of 27 August 2012, when he left it in a small car park off Homer Street and View Street, Earlwood (Exhibit 64-66, 75).
The vehicle was seized by police on 7 September 2012, at which time it no longer had any registration plates attached to it (Exhibit 3).
[12]
FORENSIC EVIDENCE RELATING TO THE MERCEDES
The Mercedes was taken to a police station at Bass Hill where it was photographed and forensically examined. Photographs of the car show that it was consistent in appearance with the Mercedes depicted in the Centro CCTV footage, and with the descriptions given by the eye witnesses previously referred to. For example,
1. The car was a dark grey four door sedan;
2. The specific model of the car was a Mercedes C63 (2009);
3. The car had various other features (e.g. dark tinting on the windows, the shape of the wheels, doors, brake lights, rear spoiler et cetera) which were all consistent with the vehicle observed at Seven Hills.
The rear interior area of the car was swabbed for gunshot residue (GSR). A total of 50 particles collected from this area were consistent with primer GSR. Of these particles, 34 were characteristic of gunshot residue as they contained all three elements commonly found in gunshot residue being lead, barium and antimony. The remaining 16 were indicative of gunshot residue but only contained two of the three elements commonly found (Exhibit 77).
An expert analysis of the morphology of these particles confirmed that they were GSR.
An analysis of the GSR collected from the spent cartridge of the NAB branch at Seven Hills on 6 June 2012 confirmed that it also contained lead, barium and antimony.
The finding of the gunshot residue in the rear of the Mercedes was consistent with the car having been used in the armed robbery at Seven Hills. Expert evidence at trial indicated that the discharge of a weapon (such as the firing of the pistol) results in the expulsion of gunshot residue. The person holding the weapon as well as their immediate surrounding area is usually covered in an amount of gunshot residue. This gunshot residue can then be transferred to other items with which the person comes into contact (such as the rear interior of the Mercedes). I accept that the finding of the gunshot residue confirmed the use of the Mercedes in the robbery.
[13]
EVIDENCE REGARDING THE NORINCO PISTOL
On 22 October 2012, Mr Kwu was the driver of an Audi vehicle at Kensington. Also present in the car were four passengers, Acura Niuqila, Lawrence Bamblett, John Filipaina and Michael Mealey. The police had installed a listening device in that car and the device recorded conversations of the occupants in the vehicle on that day.
The car was stopped by the police and searched. In the rear nearside foot well of the car police located a black Norinco 9mm calibre pistol. The pistol contained a magazine which was loaded with 11 rounds.
The police downloaded the audio recording from the listening device. A conversation was recorded between Mr Kwu, Mr Filipaina and Mr Mealey (Exhibit 82) as follows:
Kwu: "Down Cleveland Street, you reckon?"
Filipaina: "Why not. You can go right if you want."
Kwu: "You navigate me, hey, once we're in."
Filipaina: "And just hit a right at those lights, you reckon."
Kwu: "You navigate me, once we're in navigate. Watch my left, know what I mean?"
Mealey: "How many, how many things are in here? Four things?"
Kwu: "Nah, there's 11 in there."
Filipaina: "Um, um."
I accept that the words spoken by Mr Kwu indicating that there were "11 in there" were a reference to the number of cartridges in the magazine of the pistol.
Upon being seized, the pistol was subject to ballistic testing which involved the firing of a number of test rounds. The projectiles and spent cartridge cases from the test firing were then compared to the projectile and spent cartridge case retrieved at the NAB Seven Hills on 6 June 2012. I accept that this confirmed that the Norinco pistol found in the Audi vehicle was the pistol that had been used in the robbery on 6 June 2012.
[14]
ADDITIONAL EVIDENCE REGARDING MR NOLAN AND MR KWU
Evidence in the Crown case included video recordings and images of Mr Nolan and Mr Kwu in 2012 (Exhibits 91-95) as well as evidence from the officer in charge, Detective Luke Hannington, as to their objective heights. Mr Nolan and Mr Kwu's physical characteristics as depicted in the recordings and images as well as their heights were described by the officer in charge. They were consistent with the appearance of the men in the grey hoodie and the navy blue hoodie depicted in the CCTV footage from Centro and the NAB branch. Mr Kwu's skin colour and the shape of his eyes were also consistent with the limited view of the features of the man in the navy blue hoodie who can be observed in the NAB CCTV footage.
I accept that the jury clearly accepted beyond reasonable doubt that Mr Kwu and Mr Nolan were the two offenders that entered the bank branch, Mr Nolan with the pistol and Mr Kwu with the sledgehammer.
[15]
MR KWU'S PURPORTED ALIBI
Mr Kwu raised an alibi defence on the basis that his work records for 6 June 2012 gave rise to a reasonable possibility that as at 2.30pm on 6 June 2012, he was at Burwood, and therefore could not have taken part in the armed robbery at Seven Hills at 2.42pm. The Crown case was that Mr Kwu's work records were unreliable and inaccurate, as they were generated by him and not checked for accuracy by any third party.
As noted earlier, in June 2012, Mr Kwu worked as an independent contractor/courier driver for a company called CEVA Logistics. His work involved delivering parcels on behalf of CEVA's customers to various locations in Sydney. The individual jobs were booked by the customers with CEVA and then assigned by CEVA to courier drivers such as Mr Kwu.
As part of his work, Mr Kwu was required to complete a daily run sheet which recorded all deliveries he completed on a given day. Mr Kwu submitted the run sheets to CEVA on a daily basis. In addition to the run sheets, CEVA operated a radio system. Couriers engaged by CEVA were required to use a radio or a mobile phone to contact CEVA's radio room and report the conclusion of each delivery. Each call was logged by a radio operator generating a radio log for each delivery.
Both the run sheets and the radio logs relied on a self‑reporting/honesty system. The couriers recorded the starting time of each trip on their daily run sheets without supervision by CEVA. While individual jobs on a run sheet were initiated by storemen who received the deliveries, the storemen did not check the delivery times written by the drivers on the run sheets. Similarly, while the courier drivers reported completed deliveries to the CEVA radio room, there was no independent verification that the times given to the radio operator were accurate.
One of CEVA Logistics customers was the Chemist Warehouse franchise. From time to time, Mr Kwu picked up parcels from a Chemist Warehouse depot then located at Smithfield, and transported them to Chemist Warehouse stores throughout Sydney. Mr Kwu's run sheet for 6 June 2012 suggests that he carried out two such runs (Exhibit 79):
1. In relation to job number 6, the run sheet states that Mr Kwu:
1. Collected three parcels from the Smithfield Depot arriving at the depot at 8am and leaving at 8.40am.
2. Delivered these parcels to a Chemist Warehouse store at Campsie arriving at 9.50am and completing the delivery at 11.05am.
1. In relation to job numbers 4959 and 4961, the run sheet states that Mr Kwu:
1. Collected two parcels from the Smithfield depot arriving at 11.50am and leaving at 12.05pm.
2. Delivered parcel 4959 to the Chemist Warehouse Burwood Central store arriving at 1.05pm and leaving at 1.40pm.
3. Delivered parcel 4961 to the Chemist Warehouse Burwood store arriving at 1.45pm and leaving at 2.30pm.
While these runs were completed by Mr Kwu, the run sheet presented a false record of the timing of Mr Kwu's movements on 6 June 2012. This is apparent from inter alia the following:
1. As previously referred to, Mr Kwu and Mr Nolan at Newtown at 10.40am; the run sheet indicates falsely that Mr Kwu was completing a delivery at Campsie from 9.50am until 11.05am;
2. Cell tower data for Mr Kwu's service 324 shows that at 12.05pm, he was in the vicinity of Silverwater. The run sheet falsely suggests that he was completing a pickup at Smithfield.
3. Cell tower data indicates that at 1.28pm and 1.31pm, when Mr Kwu was communicating with Mr Ilievski, he was in the vicinity of Rose Hill. The run sheet indicates falsely that he was completing the delivery at Chemist Warehouse Burwood Central.
4. Cell tower data further shows that during the period 1.42pm to 1.51pm, Mr Kwu was in the Prospect-Girraween-Seven Hills area whereas the run sheets suggest falsely that he was still completing deliveries at Burwood.
Chemist warehouse storeman who initialled the run sheet entries relating to Mr Kwu's two deliveries at Burwood on 6 June 2012 signed the document without checking the delivery times on it. The storeman signed the run sheet simply to acknowledge the delivery had been made at their respective stores. Because the run sheets were CEVA records, they were neither scrutinised nor copied by the storeman.
The jury's verdict clearly indicates that they rejected Mr Kwu's alibi evidence beyond a reasonable doubt, as well as the potential alibis raised by Mr Nolan and Mr Ilievski.
I will return to the objective seriousness of those offences.
[16]
MR ILIEVSKI'S ADDITIONAL CHARGES
I turn to the facts in relation to the additional offences faced by Mr Ilievski, being two offences of aggravated break and enter and commit serious indictable offence, in each case, namely larceny. The first offence was on 7 December 2014 at the Avalon Post Office:
1. At about 4am on 7 December 2014, the offender and an unknown co-offender forced entry via the rear staff door of the Avalon Beach Post Office in Avalon Parade, Avalon Beach. The offender and the unknown person walked around to the staff side of the counter area and searched through drawers, cabinets and containers.
2. At about 4.30am the store manager, Jessica Cavanagh, received a telephone call from Security Services advising her that multiple alarms had been set off at the store. Ms Cavanagh travelled to the store and saw the police were already in attendance. When she went inside she saw that there were many items out of place, including the cash drawers that were on the floor. She saw that the safe in the manager's office had been opened. The offenders had stolen stamp books to the value of $39,819.10, and also an unspecified amount of foreign currency and two mobile phones.
3. Police forensically searched the premises and found a blue flashlight in the corridor near the rear door. Although the flashlight was seized, forensic analysis of the torch did not yield any result. The area was also examined for fingerprints but there was nothing found of assistance to the investigation.
4. CCTV footage was obtained. On it the offender and the unknown person can be observed walking around the staff area of the post office. Both offenders were wearing jumpers with their faces and heads covered. The offender Ilievski was wearing a distinctive grey hat with a brown patch on the front. He was also wearing distinctive blue and yellow ASICS trainers.
29 DECEMBER 2014 - FIVE DOCK POST OFFICE
5. At about 8.10pm on 29 December 2014 the offender and unknown person forced entry to the rear staff door of the post office in Great North Road, Five Dock. The offender and the other person crawled around on the floor on the staff side of the counter area and searched through drawers, cabinets and containers. The offenders walked through the rear staff area of the store and forced entry to an internal office. The offenders stole stamp books, cash and two external hard drives with a total value of $10,650.
ARREST
6. Around the same time, police arrived at the scene after hearing alarms and could see two individuals still inside the premises, both dressed in dark clothing. The police went to the rear of the building and saw the two men jumping over the rear fence. A foot chase ensued with one of the men escaping, but Mr Ilievski was detained by police a short distance from the scene.
7. When arrested, the offender was found to be in possession of a Toyota smart key hidden in his underwear. The police located a Toyota Aurion vehicle 50 metres away from the Australia Post building. When police tried the key it opened the Toyota. When later questioned about the car, the offender admitted to driving it but said that it was loaned to him by a friend. The offender did not participate in an ERISP, as was his right.
8. A number of other items that were dropped by the offenders while the police were in pursuit of them were found near the scene. Included amongst these items was a large white Australia Post sack that contained a number of valuable items such as cash, hard drives, stamps and books. Also, separately, a number of other documents and phone cards were found along the route.
9. The police also found items of clothing discarded along the chase route. The offender was seen to run into the driveway of 36 Waterview Street, and jump the rear fence before being apprehended on nearby Sutton Street. When police later returned to the driveway of 36 Waterview Street to search the area, they found a pair of black gloves, a blue-grey cap and a black shirt.
10. Later forensic analysis of the items of clothing seized from the Waterview Street area returned DNA profiles consistent with that of the offender, Mr Ilievski.
11. When arrested, Mr Ilievski was found to be still wearing a pair of distinctive blue ASICS trainers.
At this point I intend to take a break for half an hour.
SHORT ADJOURNMENT
MATTER INTERPOSED
[17]
OBJECTIVE SERIOUSNESS OF THE OFFENCES
I turn to the objective seriousness of the offences. I will deal firstly with the offences concerned with the armed robbery on 6 June 2012 before I separately deal with the objective seriousness of the additional offences in relation to Mr Ilievski.
Section 97(2) of the Crimes Act covers a wide range of criminal conduct. There are multiple variables which are capable of affecting where such an offence is placed on the spectrum of objective seriousness.
Relevant to that is whether the offence is carried out by one or more persons, the extent of planning involved in the commission of the offence, whether the offence involves one or more victims, the nature of the dangerous weapon used and whether the weapon was discharged.
In relation to offences contrary to s 97(1) there is a guideline judgment of Henry v R [1999] NSWCCA 111 in which Spigelman CJ provided a non‑exhaustive list of the types of circumstances which may affect the assessment of seriousness of a particular armed robbery. Referred to are the nature of the weapon, the vulnerability of the victim, the position on the scale of impulsiveness/planning, the intensity of threat or actual use of force, the number of offenders, the amount taken and the effect on the victims.
I accept that in this matter there are several features which lead to a conclusion that this is a very serious offence. I note the Crown in the written submissions has referred to it as falling well above the middle of the range of objective seriousness, and towards the higher end of the range for offences of this type, but below the most serious category.
A s97(2) offence does not have a relevant standard non-parole period, and as the Court of Criminal Appeal has pointed out on many occasions, it is not necessary in the absence of a standard non-parole period being provided to assess a matter against the mid-range of objective seriousness. Nonetheless, since the introduction of standard non-parole periods, it has become an almost universal position that the parties address objective seriousness on the basis of comparing it to a mid-range offence.
Relevant features are, as suggested, the degree of planning and sophistication. In this matter, the execution of the joint criminal enterprise involved a significant degree of planning as well as sophistication. Matters relevant to that are:
The length of the planning period leading up to the robbery, having commenced at the latest on 22 May 2012.
The undertaking of several trips to the Seven Hills area by Mr Nolan and or Mr Ilievski.
The securing of access to a high‑performance getaway car which had previously been stolen by unknown persons.
The arrangements to store the getaway car in Sasha Wilson's garage for a number of weeks both before and after the robbery.
Securing stolen registration plates that were attached to the getaway car at the time of the robbery.
The offenders taking extensive steps to conceal their involvement in the robbery, including:
1. Changing mobile numbers in preparation for the robbery.
2. Using coded language in their telephone communications.
3. Leaving their phones and vehicles at other locations during the armed robbery (Mr Nolan and Mr Ilievski).
4. Mr Nolan arranging a bank deposit in a different part of Sydney in an effort to create an alibi.
5. Mr Nolan sending messages to friends and associates complaining of a sore ankle in order to create the impression that he had limited mobility.
6. Mr Kwu creating false work records in an effort to create an alibi.
7. Mr Ilievski leaving his usual phone and car at Ashfield at the time of the robbery and Mr Ilievski's activities in concealing the Mercedes getaway car from the law enforcement for a period of approximately two months after the armed robbery.
The armed robbery on 6 June 2012 was executed pursuant to a joint criminal enterprise involving the three offenders. It came into being on or before 22 May 2012 and had a number of features in common with the armed robbery previously referred to as being carried out in Melbourne in 2003, namely:
The targeting of a suburban branch or bank.
The use of a stolen high‑performance vehicle as the getaway car.
The use of a sledgehammer.
The offenders' roles in both robberies - Mr Ilievski was the driver of the getaway car while Mr Nolan and Mr Kwu entered the branch and carried out the physical acts of the robbery (in Melbourne together with a fourth participant).
In this robbery there was intended to be a fourth person who eventually did not participate.
The offenders arranged to have use of a stolen vehicle for the purpose of the armed robbery, being a high‑performance four door Mercedes which had been stolen from its owner on 29 August 2011.
After the robbery, it appears that Mr Ilievski ultimately claimed the vehicle before abandoning it at Earlwood on 27 August 2012 after the number plates or the registration plates had been changed on a number of occasions.
The evidence demonstrates that the offenders made arrangements to use the stolen Mercedes sometime before the armed robbery. Mr Nolan had approached Ms Wilson with a request to use her garage for the purpose of storing the Mercedes before 22 May 2013.
Mr Nolan paid Ms Wilson $300 to $400 for the use of her garage when the Mercedes was secreted in the garage from sometime before 6 June 2012.
The involvement of all three offenders at that stage of the enterprise is evident from surveillance data and telephone intercepts relating to the events of 22 May 2012. It was on that date that Mr Nolan and Mr Ilievski travelled to Seven Hills; while they were travelling back together, Mr Nolan contacted Ms Wilson to arrange to visit her.
Mr Nolan paid a short visit to Ms Wilson at 8.16pm and Mr Ilievski picked him up from the lane behind Ms Wilson's building. The evidence is that at this early stage, Mr Ilievski was using covert language to refer to the location at which he was to pick up Mr Nolan. After Mr Ilievski picked up Mr Nolan, the two of them drove to Newtown, where they had a short meeting with Mr Kwu at about 9.49pm.
On the night of 22 May 2012, the Toyota Yaris frequently used by Mr Shingler was parked in Church Street, Drummoyne, and the registration plates attached to it were removed by unknown persons. They eventually were used in order to disguise the Mercedes during the time of the robbery.
All of above indicates that the three offenders were party to a joint criminal enterprise as at 22 May 2012, and Mr Shingler's number plate from the Toyota Yaris had been sourced as a result of the coming into existence of that enterprise either late on 22 May or early on the 23 May 2012.
The joint criminal enterprise involved a number of trips by Mr Nolan and Mr Ilievski to the Seven Hills area; I conclude that these trips were preparatory to the armed robbery. Their likely purposes were to case the area surrounding the NAB Branch in the Centro shopping centre at Seven Hills and to identify arrival and departure routes from the shopping centre, and also, in my view, the location of any potential CCTV coverage.
The trip referred to on 22 May 2012 was one such trip. There were further trips by Mr Nolan and Mr Ilievski at Seven Hills on 27th and 29 May 2012. On 29 May 2012, at a time approximate to his meeting to Mr Nolan, Mr Ilievski was in an area close to the Centro Shopping Centre. The three offenders met on the evening of 30 May 2012 at Mr Kwu's residence, and on 1 June 2012, Mr Nolan and Mr Ilievski met at the McDonald's restaurant at Stanmore.
On 5 June 2012, Mr Nolan and Mr Ilievski again met at Seven Hills. Following that, Mr Ilievski left his car at Kings Park (north of Seven Hills).
Mr Ilievski and Mr Nolan then travelled separately to other parts of Sydney but kept in contact with each other as well as Mr Kwu. The three offenders met at Mr Kwu's residence for about 10 minutes at 7.48pm. After this, Mr Nolan and Mr Ilievski picked up Mr Ilievski's vehicle from Kings Park at 8.32pm and drove around Seven Hills in an area 1.5 kilometres south east of the Centro.
[18]
Mr Nolan:
Arranged for his then girlfriend, Ms Taya Johnson, to make a deposit at the NAB branch at Eastgardens using his bank card in order to create a false alibi which was only frustrated by the CCTV recording obtained from that branch.
During the armed robbery, Mr Nolan left his usual phone with his son, Josh Nolan, at Ms Wilson's residence at Ashfield. When Mr Kwu called that number at 1.09pm to check whether Mr Nolan was there, Josh Nolan told him that Mr Nolan was "ongay" (gone) and "on his way". Also, on 6 June 2012 Mr Nolan told a number of people over the phone that he had a sore ankle and was unable to move.
[19]
Mr Ilievski:
During the armed robbery, Mr Ilievski left both his car and his phone ending 555 at Ashfield. He left the phone on, which meant that it continued to make contact with the mobile phone network in the area, several kilometres away from Seven Hills.
Before returning to Seven Hills on the afternoon of 6 June 2012, Mr Ilievski handed his phone ending 555 to his employee, Mr Sciberras, meaning that the phone made contact with cell towers in Narwee while Mr Ilievski was returning to Seven Hills to retrieve the getaway car with Mr Kwu and Mr Nolan.
[20]
Mr Kwu:
Created a run sheet which did not reflect his true movements on 6 June 2012. The run sheet falsely suggested that Mr Kwu was at Burwood at 2.30pm. The purported alibi evidence would have made it impossible for Mr Kwu to have taken part in the armed robbery at Seven Hills.
In their phone communications, all three offenders used coded or cryptic language, nicknames and pig Latin to conceal each other's identities and/or the nature of their activities.
During the armed robbery Mr Nolan and Mr Kwu wore not only facial disguises but also gloves, which ensured they did not leave fingerprints at the bank.
A final aspect that reflects the sophistication of the offenders' activities, albeit referable primarily to Mr Ilievski and to a certain extent Mr Nolan, relates to the efforts to conceal the Mercedes getaway car after the armed robbery. Mr Ilievski arranged to have the Mercedes stored at two different locations for a period of approximately two and a half months after the armed robbery. During this period three different sets of registration plates were placed on the vehicle. Each of those registrations was actually associated with another Mercedes of a similar model. This was clearly intended to reduce the possibility of the vehicle coming to the notice of police until after it was abandoned.
[21]
USE OF THE PISTOL AND ADDITIONAL IMPLEMENTS
When Mr Nolan and Mr Kwu walked into the NAB branch on 6 June 2012, they carried with them the following items: a Norinco 9 mil calibre pistol carried by Mr Nolan, an item described as a large screwdriver with a two-pronged head used by Mr Nolan to force open the tellers' drawers during the robbery and a large sledge hammer carried by Mr Kwu. The sledge hammer at least had two potential uses, firstly, to intimidate the bank staff and/or customers and, secondly, potentially to be used to access any locked safe, if necessary and if time allowed.
An offence under s 97(2) involves the use of a "dangerous weapon" which is a term defined in s 4(1) of the Crimes Act to include a firearm within the meaning of the Firearms Act 1996, which in turn includes a pistol. The definition of a dangerous weapon also includes an imitation firearm - a weapon within the Weapons Prohibition Act 1998 - and inter alia, a spear gun.
The following features concerning the use of the pistol increase the objective seriousness of the offence in this case.
1. the offenders used a functioning loaded firearm and,
2. the firearm was racked and then discharged during the armed robbery in the immediate vicinity of a number of cowering bank staff, but the fact that Mr Nolan and Mr Kwu also had in their possession a sledge hammer and a two-pronged screwdriver also increases the objective seriousness of the offence to some extent because it further reflects the planning for the offence.
As I have previously referred to, there is a very strong similarity between the modus operandi of the commission of this offence and the modus operandi of the commission of the similar offence at the Commonwealth Bank branch in Victoria on 13 June 2003.
I accept that it is likely that the delay in Mr Nolan's and Mr Kwu's entry into the teller area is the likely explanation for the fact that the sledge hammer did not find any more use than intimidation, although I accept that it was taken for the purpose of endeavouring to break open any safe or locked cabinet, time allowing, and in that respect I note the absence of the fourth participant created a problem in relation to being able to control the public foyer area of the bank sufficiently to delay the robbery being reported by someone.
As to the amount of money removed by the offenders, it was a total of some $15,377. I accept that that is, in terms of the money held by banks from time to time perhaps a less significant sum, certainly I believe it was a less significant sum than the offenders intended to obtain. However, it is still a significant sum, and it was not a larger sum simply because of the consequence of the offenders' inability to control the area and the delay occasioned to their entry into the secure area.
In my view, the comparatively low amount obtained does not reduce the objective seriousness of the offence in the circumstances.
[22]
CIRCUMSTANCE OF THE OFFENCE AND THE EFFECT ON THOSE PRESENT
The robbery was a brazen act committed during daylight in a busy shopping centre and in the presence of several bank staff and many members of the public, including elderly members of the public. Both members of the public inside and outside the branch in the shopping centre were confronted with the activities of the offenders. This feature increases the objective seriousness to some extent, given that an armed robbery with a dangerous weapon can be committed against a single victim within relative privacy.
There were some ten persons present in the bank branch at the start of the robbery: Deborah Matthews, manager, Joanne Morgan, customer service officer, Kristine Barnes Suluape, a head teller, Ekta Suri, teller, Marian Girgis, teller, Jyoti Kamath, financial adviser, and a number of customers, John Fonseka in the front foyer, John Bercich in the teller waiting area, a female customer in the teller waiting area and Anne Hyde in the semi open office with Ms Kamath. The ten individuals referred to above found themselves in a relatively small space in the presence of a man armed with a pistol and another armed with a sledge hammer in the middle of an unexpected traumatic event which included the actual firing of the Norinco pistol.
A number of the witnesses described the fear and panic they endured at the time of the offence. I will simply refer to the relevant transcript references:
Ms Morgan at transcript 100 to 101 and 102;
Ms Matthews at transcript 63 and 65;
Mr Fonseka at transcript 199;
Ms Suri at transcript 138 to 139;
Ms Girgis at transcript 169;
Ms Kamath at transcript 179;
Mr Bercich at transcript 187 and 188.
It is clear that significant trauma was inflicted on all of the persons then present, whether they were members of staff or customers.
Victim Impact Statements have been provided from Ms Matthews and Ms Morgan. Section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 states that:
"It as an aggravating feature of the offence where the injury, emotional harm, loss or damage caused by the offences are substantial."
In R v Solomon [2005] NSWCCA 158 Howie J considered the judgment of Hidden J in R v Youkhana [2004] NSWCCA 412. Howie J (with whom Grove and Latham JJ agreed), stated at [17]:
"As I understand the judgment of Hidden J, there would need to be evidence of "an emotional response significantly more deleterious than that which any ordinary person would have when subjected to an armed robbery" before the aggravating factor could be found because the seriousness with which courts consider the offence of armed robbery offences generally is based, in part at least, upon the nature of the threat posed to the victim and the normal reaction of a person to that threat. The courts sentence that offence on the assumption that the victim of an armed robbery would have been put in fear of death or serious injury by the threats made by the robber and the weapon with which he is armed."
Ms Morgan, in her Victim Impact Statement, stated that the events of 6 June 2012 "changed [her] life forever." She described the adverse effects of the armed robbery on her which continue to the present day, now more than eight years later. These effects include trouble sleeping, often waking with nightmares, and inability to go out alone at night or to new places alone. Ms Morgan stated she was unable to attend sporting events or places with large crowds. She says, "I am constantly looking over my shoulder and scanning places to ensure I'm safe and that my family is safe." Ms Morgan was forced to change her employment as a result of the armed robbery. She states that, "Having served the bank for a period of 20 years, she was unable to return to work after the events of 6 June 2012." She stated, "I lost a job I loved and one that I excelled at and thought I would be doing for the rest of my life". She has had to "reinvent herself" and find another career. This has cost her both financially and emotionally.
In the case of Ms Matthews, again, more than eight years after the events, her sleep continues to be adversely affected by the armed robbery. She has nightmares two to three times per week. This then impacts on her ability to function on the following day. Ms Matthews is scared to go out on her own at night. She states that prior to the robbery, she enjoyed a fulfilling career, and her work was part of her identity. As a result of the armed robbery she suffers from PTSD, which over the years has "become more and more debilitating." It is now at a point where working in a managerial position at the bank branch is no longer an option for Ms Matthews. This has caused uncertainty about her financial security. Ms Matthews is still receiving ongoing treatment to help her cope with day to day life.
It is always to be anticipated in relation to armed robberies, particularly where a dangerous weapon is present, and even more so, particularly, where it is fired, that there will be very significant effects on those who are the victims of the offence. In my past experience of bank staff in relation to armed robberies, they are frequently able to continue in their work after the first such robbery, and only become so badly affected once they have suffered a second armed robbery, at which time they cease working for the bank.
This was a very serious example of an armed robbery, with the discharge of a weapon in the near vicinity of the bank staff, who were otherwise terrorised by the presence of a number of robbers and the weapons they carried. In my view, the impact, in particular, on Ms Matthews and Ms Morgan goes beyond what can ordinarily be expected in relation to an armed robbery of this nature. I conclude that it is an aggravating feature contrary to s 21A(2)(g) of the Act.
[23]
USE OF A GUN
While all armed robbery offences can generally be seen as very serious, and the presence of a dangerous weapon is an element of the offence, in R v Readman (1990) 47 A Crim R 181 at 185, it was stated that:
[Armed] "robberies can be viewed in escalating seriousness of carrying a firearm, of a firearm being loaded, of the loaded firearm being discharged and of discharge being deliberately aimed at a victim or important target."
In this case, the Norinco was a dangerous weapon, it was loaded and it was discharged in the near vicinity of banking staff. Care must always be taken when considering s 21A(2)(b) or (c) of the Crimes (Sentencing Procedure) Act when considering whether to take into account a feature as an aggravating matter when it is a necessary element of the offence. Clearly, this offence has as an element that the offender used violence or put the victims in fear: the offender was armed with a dangerous weapon.
However, in R v Dougan [2006] ACR 135, it was said that the Court was entitled to take into account that the offence involved actual or threatened use of a pistol as an aggravating feature for an offence of assault with intent to rob whilst armed with a dangerous weapon. This is because actual threatened use of a weapon is not an element of an offence under s 97(2) of the Crimes Act. The requirement that the offence was committed while armed with a dangerous weapon means possession of a weapon available for immediate use.
Similarly, in Huynh v R [2006] NSWCCA 224, it was held that the Court was entitled to take into account the firing of a gun as an aggravating factor pursuant to s 21A(2)(c) in sentencing for an offence under s 97(2).
In this case, the gun was used to threaten a member of staff by saying words to the effect of, "Open the door or I'll shoot you" by Mr Nolan and it was discharged subsequently and in close proximity to the banking staff then in the ordinarily secured tellers' area where various of the staff were then, it would seem, cowering underneath their desks or in close proximity.
A further aggravating circumstance or relevant circumstance to sentence is that the offence occurred in company. There were two offenders in the bank, Mr Nolan and Mr Kwu. While an offence under s 97(1) of the Crimes Act refers to:
"Whosoever being armed with an offensive weapon or instrument or being in company with another person robs or assaults with intent to rob any person."
Subsection (2) provides an aggravated offence where the offensive weapon is, in fact, classifiable as a dangerous weapon.
In this matter the count before the jury did not aver that the offence occurred in company, so while the fact that it was a dangerous weapon was taken into account by the nature of the charge itself and the maximum penalty provided, it is also relevant to take into account that it occurred in company as adding to the seriousness of the offence.
Submissions have been made on behalf of Kwu and Mr Ilievski that there is no evidence that they were aware that the gun might be discharged but the fact that they were convicted of the offence involving an averment of a dangerous weapon means that the jury found that they knew there was a dangerous weapon.
These three offenders have known each other, as I previously referred to, as disclosed by their subjective matters for a period of decades. They have previously been involved in an offence in Victoria of a very similar nature although it did not include a firearm or dangerous weapon.
Being well known to each other and having a previous disposition to commit offences of armed robbery whether or not armed with a dangerous weapon, in my view it is unlikely that neither Mr Kwu nor Mr Ilievski was not aware that the weapon was loaded, of course as to whether it might be discharged is a different question but in my view the offenders being so well known to each other and their past history indicates that there would have been no secret between them as to the weapon being in fact loaded with the potential therefore to be fired by Mr Nolan, even if not intended or expected.
I return to the Crown's submission that the offence of armed robbery falls well above the mid-range of objective seriousness and towards the higher end of the range of offences of this type but below the most serious category. I note that no submission was made to the contrary of that submission by counsel for any of the three offenders despite the Court of Criminal Appeal's reference to the inappropriate language since there was no standard non-parole period. I accept that it is in fact a reasonable way to describe this offence and I find that it was objectively so serious as to fall in the upper range of seriousness and towards the higher end of that range but below the most serious category.
As to the offence in relation to Mr Kwu and Mr Nolan in respect of drive or be carried in a stolen conveyance knowing that it has been stolen, the relevant circumstance to remember in respect of this offence as to objective seriousness is that this was not a spur of the moment occasion where some juveniles decided to ride in a stolen motor vehicle or drive it. These were two mature adults, Mr Nolan and Mr Kwu, who had previously committed crimes of a similar offence: Mr Nolan in a charge of 29 September 1993 and Mr Kwu in a similar offence committed on 21 February 1998.
What must be remembered is that the purpose of the journey they participated in was going to and away from the bank while Mr Ilievski drove for the purpose of carrying out the armed robbery, making their presence in the vehicle more serious than might otherwise be the case. It is in those circumstances a serious offence.
[24]
OBJECTIVE SERIOUSNESS OF MR ILIEVSKI'S ADDITIONAL OFFENCES
I turn now to the objective seriousness of the two offences in respect of which Mr Ilievski stands to be sentenced in addition to the armed robbery offence. As previously indicated, he pleaded guilty to two aggravated break, enter and steal offences contrary to s 112(2) of the Crimes Act committed some two and a half years approximately after the armed robbery and after he had been charged with the armed robbery offence and the charge of driving or being carried in a stolen conveyance on 13 August 2013. Having been arrested on that day and charged, he was on bail at the time of committing the two offences in relation to the post offices on 7 and 29 December 2014.
As I previously indicated, the pleas were entered on the first day of trial which was approximately three years after he had been charged and I will allow in due course a 5% discount for the utility of the plea in each case.
As to the circumstances of the first of those offences, relevant to the assessment of objective seriousness is that the offender and an unknown co-offender forced entry through the rear staff door of the Australia Post Office at 4.00am on 7 December 2014. There is no evidence before the Court as to any particular damage or the value of any particular damage that may have been caused by such forced entry. Both persons wore facial disguises and head coverings and they stole stamp books valued at $39,819.10, an unspecified amount of foreign currency and two mobile phones. None of the stolen items were recovered or returned. They fled from the scene and were not apprehended on that occasion.
The second offence on 14 December included again that the offender and the unknown co-offender forced entry through the rear staff door, again there is no evidence before the court as to any actual damage or if any actual damage the value of restitution. Once in the store they crawled around searching through the drawers, cabinets and containers and forced entry into an internal office. They stole items to the value of $10,650 being stamp books, cash and two external hard drives. They were chased by the police and Mr Ilievski was apprehended during the chase. Located were a number of items of clothing in the driveway of a nearby property over which he had passed and the items had been discarded by him during flight. They included a pair of black gloves, a cap and black shirt.
Each of the offences has a maximum penalty of 20 years imprisonment and a standard non-parole period of five years is provided. As I previously said this is of greater relevance where it is a plea of not guilty rather than as here, a plea of guilty.
Mr Ilievski committed the offences while he was on conditional liberty following being bailed for the armed robbery and the steal motor vehicle offences. In my view an aggravating feature under s 25A(2)(d) of the Crimes (Sentencing Procedure) Act is his significant criminal record which I will later refer to.
In relation to each of those offences I find in the circumstances, contrary to the Crown's submissions that they fall in the middle of the range of seriousness and although no submission was made to the contrary by counsel for the offender, that the objective seriousness is approaching the mid-range rather than within it. However considering all of the other material before the court there is no question that the s 5 threshold in each case has been passed and no submission to the contrary was made by Mr Wendler who appears for Mr Ilievski.
While the Crown has provided some statistics in that regard by way of summary I have myself perused the statistics available through JIRS just as I have also done in relation to the other offences I have already referred to and I note similarly in respect of the armed robbery offences in respect of each offender and the drive or be carried offences in respect of Mr Kwu and Mr Nolan that it has been implicitly accepted, as of course it must be, that the s 5 threshold has been passed. Indeed the statistics reveal that a sentence of imprisonment is inevitable in relation to armed robbery offences.
I next intend to pass on to deal with subjective matters and I will take another break before I do that and finally deliver the sentences. Accordingly what I intend to do to ensure that I finish this process before 4 o'clock today is to take a half hour break now and I will return to the bench at 10 past 2.
[25]
Shane Nolan
The offender did not give evidence at trial or on sentence. Available in respect of subjective matters are the following:
New South Wales Criminal History,
Victorian Criminal History,
Queensland Criminal History;
New South Wales Department of Corrective Services Conviction Sentence and Appeals Report;
Report of Patrick Sheehan, psychologist, dated 2 November 2020;
Sentencing Assessment Report of Ms Sara Lindsay, Community Corrections Officer, dated 10 December 2020;
Report of Ms Laura Durkin, psychologist, dated 5 October 2013 in respect of earlier unrelated offending.
Subjective matters are drawn from the above material.
At the time of the offending, the offender was 39 years of age and is now 47 years of age. He was born in Australia and is the second of three children. He spent most of his time in California up to the age of 12. His father was in car sales and his mother, a nurse. They were not well off with an unreliable income and moved home frequently, which disrupted his education.
His father had a gambling problem which may have contributed to their financial difficulties. There were no familial issues with domestic violence, mental health or substance abuse.
At 12 years of age, he was sent to live with relatives in Sydney while his parents continued in America to earn their passage. He felt unwanted and mistreated and ran away within six months. Until his parents arrived, he supported himself by theft. They were unable to establish reliable employment and lived in public housing. His sister became addicted to heroin and is now on a methadone program while his brother is described as well-adjusted and responsible. He has maintained unbroken contact with his family throughout his life, with regular contact, although limited while in custody due to COVID-19 and his mother's hearing loss. He had no particular learning problems and commenced Year 7 at Arthur Phillip High School but was suspended for truancy and began incurring criminal charges. He completed his education between Arthur Phillip and various Juvenile Justice facilities to Year 10, without obtaining the school certificate. While on work release, he has completed certificates in cookery and barista training at Ultimo TAFE in 2009.
He has a negligible history of employment, relying on family, Centrelink payments and criminal offending. At the time of the offences, he was unemployed and in receipt of Centrelink benefits. He currently works as a sweeper and has expressed an interest in obtaining qualifications in construction. Considering his age and lack of work history, his prospects in this regard would appear to be modest at best.
His primary associations since the age of 12 had been with likeminded anti-social individuals, although with some pro-social partners in recent times. His longest relationship was for five years from 1994 to 1999. The relationship was unstable and resulted in the birth of three children, now aged between 21 and 26, with whom he has maintained contact. His current relationship commenced while on bail, post the successful appeal for the first trial for this offending, and he not unreasonably fears that it will not survive a further period of custody.
He does not use and has no criminal history of using prohibited drugs and is not a regular user of alcohol. He has a problem with gambling, and attended Gamblers Anonymous while previously in custody but does not associate any of his criminal history with gambling.
He has no significant physical or mental medical history although he has some residual neck pain from a car accident in 2001. While in the past he has been prescribed the antidepressant Mirtazapine while in custody, he voluntarily ceased using it when he obtained bail post appeal in 2018.
Mr Sheehan opines that he "may" meet the diagnostic criteria for Antisocial Personality Disorder, which generally attenuates through middle life with maturity and the other stabilising influences present.
The offender has an extensive and regular history, excluding periods of custody, of offending commencing as a 13 year old and continuing as an adult. He has spent periods of time in juvenile detention in New South Wales, and as an adult in New South Wales, Victoria and Queensland. While most of his offending is property related, it also includes offences of violence against property and persons.
Of particular relevance is that on 13 June 2003, the offender together with Mr Ilievski, Mr Kwu and a fourth person committed an armed robbery of a Commonwealth Bank branch in Melbourne which was closely similar to the current matter in methodology with the exception that it included the participation of a fourth offender and did not involve a firearm. He was sentenced on 6 March 2006 to a term of imprisonment of five years, six months with a non-parole period of three years.
Also relevant is that Mr Nolan committed a further offence before being arrested in respect of this matter. On 29 November 2012, he committed the offence of deal with property suspected proceeds of crime which was taken into account on a Form 1 when being dealt with for other matters.
He has known his co-offenders for over 20 years and refers to associating with them as a "poor decision" and that it was difficult to separate from them considering their extensive shared history.
Mr Sheehan's report incorrectly states that Mr Nolan has no criminal history in respect of "prior convictions for robbery or other weapons offences". This error appears to arise from the fact that Mr Sheehan was not provided with a Victorian Criminal History or the New South Wales Department of Corrective Services Convictions, Sentences and Appeals Report which each records the similar 2003 Melbourne offences.
At the time of this offending, he was on parole in relation to offences committed in Victoria, being two offences of aggravated burglary in relation to which he had been sentenced in each to a concurrent term of imprisonment of three years, six months on 26 June 2007. The term was expressed to commence on 3 August 2010 and expire on 2 February 2014 in each case. Accordingly, at the time of this offending in June 2012, he was still subject to the period of parole in relation to the two Victorian matters. Commission of offences while on parole, whether it is parole in New South Wales or Victoria or anywhere else, is an aggravating factor which has long been recognised by the courts as a serious circumstance.
He continues to deny committing the offences, and there is no evidence of remorse or contrition, let alone acceptable evidence of such.
Ms Sara Lindsay, Community Corrections Officer, assessed him as being a medium risk of reoffending. Mr Sheehan makes no assessment in this regard other than the possible effects of increasing age, and his past history of regular offending is not encouraging. The prospect of rehabilitation must be regarded as very guarded in circumstances where he remains in denial of the offending, in the circumstances of an overwhelming circumstantial case that has now been the subject of three trials, so that he must have appreciated the full impact of the Crown case.
A matter in the offender's favour is that since being released on bail subsequent to the successful appeal in respect of the first trial, he has not been charged with any further offences in the intervening period. The fact that a re-trial was pending in the circumstances of the original sentence and the inevitable consequence being detected again offending would have assisted the offender in being law abiding in that period.
MATTER STOOD IN LIST
HIS HONOUR: I return to the current matter and subjective matters.
[26]
Tony Ilievski
The offender did not give evidence at trial or on sentence. Available in respect of subjective matters are the following:
New South Wales Criminal History;
Victorian Criminal History;
New South Wales Department of Corrective Services Conviction, Sentence and Appeals Report,
Reports of Dr Christopher Lennings, psychologist, dated 30 July 2015 and 14 November 2020,
References from:
Mr Pasacule Barbalace, director Lamio Masonry Services NSW Pty Limited, dated 17 November 2020,
Mr Orazio Seminara, managing director North Head Constructions Pty Limited, dated 13 November 2020,
Mr Fred Melham, managing director Melham Civil Pty Limited, dated 11 November 2020,
Ms Zena Kak, friend of the offender, dated 23 November 2020,
Ms Danielle Smith, director Elite Body Contouring Management Pty Limited, dated 8 December 2020,
Mr Garry Papapeteros, director Hi Tech Auto Electrical and Mechanical, undated,
Ms Miller Lucich, beautician and stepsister of the offender, dated 10 December 2020,
Sentencing Assessment Report of Ms Susan Page, Community Corrections officer, dated 8 December 2020,
Letter from Dr Asad Malik GP re Mr Dragan Ilievski, the deceased father of the offender (who died on 7 August 2017) dated 22 October 2010.
Subjective matters are drawn from the above material.
At the time of the offending, the offender was 37 years of age and is now 45 years of age. He has a younger brother and a half-sister. His brother has spent time in custody as a result of criminal offending, but is said to have "gone straight" since his release in April 2018. The co-offenders are boyhood friends, and he is said to feel a sense of loyalty and identification with his criminal peer group, becoming involved in crime at a young age. He has maintained a close association with both his parents although they separated when he was about five years of age. His father died while the offender was in custody as a result of the sentence imposed at the conclusion of the first trial, and is said to have been violent towards the offender, his brother and his mother as a result of excessive use of alcohol. Up until the age of eight or nine, he lived with his mother and then with his father for a period up to school Year 7 when he left and commenced "living on the street" for a couple of months until his mother became aware and took him back in.
His mother eventually formed a new relationship and although the offender describes him as a "decent man", he was violent to his mother causing the offender to intervene.
He is described as having "remarkably poor adjustment to school throughout most of his school years" and ceased his education at the start of Year 9 without being able to read or write. He had developed a history of truancy in his primary years that continued into high school. While he was never suspended or expelled, he was bullied and responded by fighting. He was at some stage placed in a special class but there is no information as to why, other than Dr Lennings' opining that he may have been identified by the school as a slow learner. Dr Lennings reports that he provided a "garbled account on interview and he identified similar communication problems throughout his life" and opined that this may explain his poor adjustment at school, with underlying anxiety "to some extent derailing his cognitive processes". He can now read and write as a result of further education provided by Juvenile Detention.
He has no significant physical or mental health issues. Like most prisoners, he tends to get depressed in custody and has been medicated for this in the past. Similarly, he gets depressed when his relationships, which tend to be difficult, terminate, but there is no history of self-harm. He has been apparently unable to commit to relationships and he has no children.
Except for the period while on bail pending the third trial he has not had much work as "nothing would stick". Until recently he has had a poor work record generally involving spasmodic buying, restoring and selling of cars and some employment in construction and labouring while being lazy and electing not to attend. I will return to deal with employment while on bail post appeal and prior to the third trial.
He began using cannabis at the age of 13 or 14 and ecstasy at 16 or 17 before several years in custody, after which he commenced using cocaine but was a social user of prohibited drugs rather than dependent on them. After being released on parole in respect of a very similar armed robbery in Melbourne, committed in 2003 with Mr Kwu and Mr Nolan and a third person, he returned to Sydney, and while subject to parole recommenced using cocaine, and commenced using methamphetamine and later amphetamine with increasing use. Using was also part of his relationship at that time, with his partner also using amphetamines and after their breakup in 2012, his use increased.
On 29 July 2015, the offender participated in a psychometric assessment but due to Corrective Services administration issues only a screening assessment of IQ and some assessment of psychopathology were completed being "only the two sub-test screener:" Dr Lennings indicates in his 2015 report that the consequence is that "the result may underestimate to some extent his ability". He stated:
"Mr Ilievski scored no better than the bottom 3% of the population for cognitive ability suggesting his IQ falls between the borderline to mild mentally retarded ranges. It is likely his real ability is a little in excess of this. However, it does suggest he is generally a person who has low cognitive functioning."
Dr Lennings in 2015, on the basis of this test and his consultation with the offender, opined that:
"Mr Ilievski presents as a person with low cognitive function who reports a difficult childhood. He was socialised into crime and antisocial behaviour from an early age. He has poor levels of family support and function, particularly when he was younger. He was exposed to domestic violence and alcohol abuse and despite the school apparently taking some interest in him, his low verbal capacity made it very difficult for him to benefit from anything the school could do for him. As a consequence Mr Ilievski has largely been involved in antisocial behaviours and his social network is largely consistent of antisocial peers.
… Mr Ilievski has minimal life management skills. His primary difficulties in life appear to relate to his inability to maintain any kind of consistent routine or develop pro-social, non-problematic relationships either with friends or with girlfriends. As a consequence he keeps repeating the kinds of mistakes that end up with him being in gaol
... On the whole Mr Ilievski has significant difficulties in being able to manage his future".
In providing his 2020 report, Dr Lennings relied on the first report and a further consultation on 11 November 2020. There was no further psychometric assessment and the original 2015 "screening assessment of IQ and some assessment of psychopathology" were again relied on. Neither Dr Lennings nor any of the providers of references previously referred to were required for cross-examination.
It is always necessary for courts to be circumspect in respect of reports only or largely based on self-reporting where the subject of the report does not give evidence and is accordingly not subject to cross‑examination. See Lewin v R [2017 NSWCCA 65 at [26]; PH v R [2017] NSWCCA 79 at [53] and [56] and Imbornone v R [2017] NSWCCA 144 where Wilson J set out at [57] a number of principles to be applied when a sentencing judge is faced with an untested statement made to a third party. Particularly principles 2 and 4 as follows:
"2. Statements to doctors, psychologists, psychiatrists, the authors of presentence reports and others, or assertions contained in letters written by an offender and tendered to the court should all be treated with considerable circumspection. Such evidence is untested and may be deserving of little or no weight. R v Palu [2002] 134 ACrimR 174 at [40]-[41], R v Elfar [2003] NSWCCA 358 at [25], R v McGourty [2002] NSWCCA 335 at [24]-[25].
…
4. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality or otherwise mitigate penalty, then it should be done directly in a form which can be tested Munro v R [2006] NSWCCA 350 at [17]-[19]".
The offender's life history is most probably accurate. The referees have no doubt provided honest opinions as to their knowledge of and regard for the offender. Where I have difficulties with the overall effect of the references appearing to contradict the assessment of Dr Lennings of his abilities, and of the extent to which the referees are aware of the facts of the offence and the offender's criminal history. Most of the references refer to being "aware of the charges" or some very similar variation on that phrase such as "fully aware of the charges". No referee refers to having been provided with the Crown Case Statement for their better information. No referee refers to being aware of any past convictions or the nature of them, although it is implicit in the reference of Mr Fred Melham that he is aware the offender has been on bail for two years preceding the third trial, and Ms Danielle Smith was aware that he had served a period of imprisonment as a result of conviction at the first trial, having visited him while he was then in custody. Ms Vukic, as his stepsister, could reasonably be expected to be aware of his history, and those who have known him for many years can reasonably presume to at least have some general knowledge (Mr F Melham 15 years, Ms Z Kak 18 years, Mr G Papapetrous 23 years). Others have only known him for shorter periods since commission of the offence or his conviction at the first trial or while on bail pending the second and third trials (Mr P Barbalace from February 2019, Mr O Seminara 2 years, Ms D Smith 7 years).
Dr Lennings describes the offender as having had a lengthy association with the drug using milieu using cocaine, cannabis, methylamphetamine and amphetamines and an inability to commit to relationships which would eventually break down. At interview in 2015 he provided a "garbled account" and identified "similar communication problems throughout his life"..."he had very poor communication skills"..."he has particularly poor life management skills"..."has minimal life management skills"..."an inability to maintain any kind of consistent routine or develop pro-social, non-problematic relationships either with friends or girlfriends" and on testing "scored no better than the bottom 3% of the population for cognitive ability, suggesting his IQ falls between the borderline to mild mentally retarded range", although, "It is likely his real ability is a little in excess of this, however it does suggest he is generally a person who has low cognitive function".
In November 2020 Dr Lennings recorded that "He can now read but he does not really understand what he reads, and he has trouble remembering things that he reads"...he is "less gullible than when I first met him"..."remains a low functioning person despite some apparent improvement in his executive function (abstinence probably has helped that). He continues to show considerable confusion and his communication skills remain problematic".
At the time of the offence he was operating his own business as a motor vehicle detailer with at least one full time employee. Commission of the offence involved careful planning and precautions to which he was a party.
Mr P Barbalace who has employed him since February 2009 refers to him as "reliable, hardworking and very punctual" ... " a true company man" ... "being nominated as the company's union delegate due to "his excellent rapport with fellow workers" ... on many construction sites directly supervising other workers because of his "excellent leadership qualities" with "an outstanding work ethic" ... and "who is honest, trustworthy and a person who possesses excellent family morals" ... "proven to be responsible on construction sites" and "highly regarded by his peers and leads by example".
Mr O Seminara who has known him for two years describes him as "a friend and ex-employee" ... "reliable, hardworking" ... "family man" ... "the patriarch of his family wanting to continue instilling the positive values set by his father and lead by example" ... "honest and trustworthy".
Mr F Melham who has known him for fifteen years describes him as "working on a daily basis" ... "spending time with decent people" ... "an outgoing person, a good friend and who is always supportive of his family" ... "from his hard work over the past couple of years and has been able to achieve a good level of growth both personally and financially" ... "has strong family ethics and has proved himself on many occasions through his dedication and commitment" ... "well known between our friends and our community to be honest and trustworthy" ... "I believe there has been a positive change in Tony since the offence".
Ms Z Kak who has known him for eighteen years as a friend and neighbour describes him as "well known in our local community for his kindness and helpful nature" ... "reliable, respectful and trustworthy" ... "a caring son" ... "always conducted himself in an honourable manner" ... "putting the welfare of his family, friends and the community first" ... "extremely competent with his work" ... "has high standards and admirable morals".
Ms D Smith who has known him for seven years as a friend of her fiancé describes him as always being supportive of her and her fiancé and their family and business difficulties.
In my view the referees' favourable descriptions of the offender and the extent of support they indicate for him are inconsistent with what might be anticipated from Dr Lennings' reports and the offender's character as demonstrated by this offending and his extensive criminal history as both a juvenile and an adult. Some explanation may be available in respect of referees who have only known him since his arrest for these offences, when it appears that while subject after a successful appeal to strict bail with the knowledge that he could reasonably anticipate a significant sentence if again convicted, and that on any reasonable appreciation of the evidence conviction was highly likely he has made an effort to appropriately change his attitude to others, society and the law. There is, in the circumstances, some evidence that the risk of his reoffending may have been reduced by his belated recognition of a need to adjust his lifestyle and attitudes.
His criminal history as a juvenile and as an adult spanning New South Wales and Victoria is extensive. Although in the early years it mainly related to motor vehicles, his offending escalated over time until he spent some years in Victoria, where he was regularly committing serious offences such as aggravated burglary, burglary and theft until finally the like armed robbery of the Commonwealth Bank branch in Melbourne with his co-offenders.
He has served a number of terms of imprisonment in New South Wales and Victoria. His criminal history demonstrates an ongoing contempt for the property of others and the law over many years.
Of particular relevance is that on 13 June 2003, the offender, together with Mr Nolan, Mr Kwu, and a fourth person committed an armed robbery at a Commonwealth Bank in Melbourne which was closely similar to the current matter in methodology, with the exception that it included the participation of a fourth offender and did not involve a firearm. He was sentenced on 6 March 2006 to a term of imprisonment of five years with a non-parole period of three years.
Also relevant is that he committed further offences after being arrested in respect of this matter and was released on bail. That is, the two aggravated break and enter and commit serious indictable offence, larceny in company offences committed in December 2014, also now before this Court for sentence.
He identifies his associates as having a negative impact on him at the time of his offending and claims to have been using methamphetamines and Xanax at the time, but this was not some spontaneous or spur of the moment offence. It was carefully planned and carried out over a significant period.
He continues to deny committing the offences and the only evidence of remorse or contrition is a statement of Ms Z Kak's belief that, "I sincerely believe he is truly remorseful for the events that have occurred" which is based only on her assessment of his character rather than anything expressed by the offender.
Similarly, Ms D Smith states, "I have seen the regret and the change which he is looking for in life. I truly believe in myself he is sorry and just wants to move on and learn from this matter the best he can." "Regret" and a desire "to move on" is not remorse or contrition. The Community Corrections Officer notes that, "...he appears to have insight into the impact of his offending may have had on the victims" and that he, "...verbally expressed his shame and regret for his actions."
While the above might be thought to be some indication of remorse and contrition the offender continues to claim that he did not participate in the armed robbery and although he has conceded by a plea that he drove the stolen Mercedes that was not on the occasion of the robbery.
It is difficult to accept that remorse or contrition has been demonstrated by statements to others in the absence of evidence from him subject to cross‑examination, particularly when viewed in the context of a continuing claim of innocence maintained over an eight-year period and three trials in the context of an overwhelming circumstantial prosecution case. Dr Lennings recorded as late as 11 November 2020 that he, "maintained his innocence" (report 14 November 2020 at para 5).
Whatever be the state of his referees' knowledge of the nature of this offence and his past criminal history or the accuracy of Dr Lennings' reports as to IQ and level of function, it is evident that with the prospect of the significant sentence of imprisonment hanging over his head while on bail, pending the third trial, he has made an effort to conform to acceptable community expectations.
He was assessed by Ms S Page, Community Corrections Officer, as being a medium risk of reoffending, which I accept as appropriate, weighing up those efforts, his extensive criminal history, and his continuing denial of guilt. Rehabilitation is a moot point in the absence of an admission of guilt, but it cannot be said that there is no prospect of rehabilitation in the light of his recent efforts and his advancing age.
[27]
Muhammad Kwu
The offender did not give evidence at trial or on sentence. He did give evidence in the trial before Culver DCJ which was adduced in evidence in the prosecution case at this trial.
Available with respect to subjective matters are the following,
New South Wales Criminal History;
Victorian Criminal History;
New South Wales Department of Corrective Services Convictions, Sentences, and Appeals Report;
Report of Mr John Machlin, psychologist, dated 11 November 2020;
Letter from Dr Randolph Gray, spine surgeon, to Dr Barrie Davey GP re Ms Aimee Golden, dated 14 December 2018;
Reference letter from Aimee Golden (referring to herself as Aimee Kwu) dated 22 November 2020;
Sentencing Assessment Report of Ms Molly McCutcheon, Community Corrections Officer, dated 7 December 2020;
Report of Ms Barbara Panagiotopoulos, psychologist, dated 27 October 2015;
Statement of Ms Amanda Staler, officer in the Human Trafficking and Criminal Justice Visa Section at the Department of Home Affairs, dated 4 December 2020.
Subjective matters are drawn from the above material.
At the time of the offending, the offender was 35 years of age and is now 44 years of age. He was born in Indonesia and has two older sisters. The family came to Sydney and settled in Alexandria. The family was well functioning and free of substance use, domestic violence, or severe financial difficulties throughout his childhood. He remains on good terms with his family and they continue to be supportive of him. He endorsed a "good childhood".
He attended primary school in Alexandria and had no academic problems, although due to racial tensions, fighting was common. He then attended Randwick Boys High School and obtained the Year 10 School Certificate, but left school at the beginning of Year 11. He had regularly truanted from Year 8 for "25 to 35 percent of the time". He describes himself as achieving average academic results without any learning difficulties, although he was disruptive in class and often aggressive, and occasionally violent. He was twice suspended; once for fighting and once for stealing.
He was introduced to drugs at 12 or 13 years of age and his use increased with age with deteriorating behaviour, which resulted in an admission to juvenile detention at 17 years of age.
He left home at the age of 20 years, returning occasionally when his relationships were in difficulty.
He had a paper run while at school and worked at Paddy's Markets part‑time, and has since worked in factory positions, landscaping, and driven taxis with employment being disrupted by periods of imprisonment.
At the time of this offending, he was working as a sub-contracted courier for a logistics company, owning his own cargo van. In 2011, together with his wife, he purchased a coffee shop at which he provided some assistance.
He has a 23-year-old son from his first relationship. Due to his partner's drug use, his son was raised by the offender's parents. His periods of imprisonment would also have made this a necessity. He was married from 2001 to 2015/16, and there is a 25-year-old stepdaughter with whom he has had no recent contact.
About one year ago while in custody, he formed a new relationship with Ms Aimee Golden, whom he has known since 2012. She is now approximately 34 years of age, and a report regarding her, dated 14 December 2018, is Exhibit K2.
She suffers from progressive adolescent idiopathic scoliosis with secondary degenerative changes and coronal instability causing severe mechanical back pain. Dr Grey appears to have provided the report to her GP, Dr Barrie Daley, for the purpose of recording his advice informing her of the prospects and risks of surgical intervention, and having advised her to return in early 2019 for further discussion with him.
Ms Golden provided a reference on behalf of the offender, dated 22 November 2020, in which she indicated that her present association with the offender results from written, telephone, weekend visits, and AVL communications while he has been in custody.
Although she refers to herself in the reference as "Aimee Kwu", this appears not to be as a result of any formal status rather than what might be referred to as a prison romance and her perception that they are now "partners". She indicates that she needs Mr Kwu's support because she is proposing to go ahead with surgical intervention for her physical problem at some unstated time. This ignores his current status in Australia as an "unlawful non-citizen" and that, putting aside that circumstance, he is not even likely to be at liberty in Australia in the near future. I am not assisted by her statements in the circumstances of their relationship that the offender is seen by her son as a "father figure " and is "passionate about having a normal life and starting a family and he always tells me he is over the gaol life and never wants to go back again," and "has a great heart."
Although I accept Ms Golden is genuine as to her beliefs and well intentioned, she strikes me as being naïve, unrealistic and ill-informed.
He has no physical or mental health problems although he was abused over a six month period, approximately one year in the report of Ms Panagiotopoulos dated 27 October 2015, when nine or ten years of age and is seeking assistance from the "Redress Scheme". He is currently medicated to assist with symptoms of depression in custody, which is a common reaction to imprisonment, and in Mr Kwu's case no doubt contributed to by the fact that he has already spent a continuous period in custody of approximately eight years, with a prospect of a further significant sentence as a result of this conviction for the second time in respect of this offending.
He commenced cannabis use at 12 or 13 years of age and experimenting with heroin at 13 with increasing drug use in high school. He used MDMA or "ecstasy" weekly from 13 to 19 years of age and occasionally thereafter. He commenced use of cocaine at about 14 or 15 years of age with irregular use since that time. He also experimented with hallucinogens in his adolescence. He commenced using crystal methylamphetamine or "ice" on a fortnightly basis, "a few months" before this offending.
In 2003 he participated in an outpatient rehabilitation program at Westmead Hospital. He has previously twice been on an opiate replacement program in 2003 and 2004 while in custody, which he identifies as having been of variable benefit. He was using cocaine and heroin when last at liberty, which was prior to his conviction and sentence imposed at the first trial in this matter. He denies drug use since, while being incarcerated, which appears to be inconsistent with a number of recorded breaches of prison regulations for possess drug, fail prescribe drug test and refuse/fail drug sample.
Ms Panagiotopoulos in her 2015 report stated she was informed by the offender that he had been diagnosed in 2004 by a custodial psychiatrist with schizophrenia and provided with anti-psychotic medication for a period of 12 months before it was discontinued and that he has not been medicated since that time. There is no other material provided in support and Mr Machlin makes no reference to schizophrenia in circumstances where if it is relevant there has been more than ample time to appropriately evidence such a diagnosis.
Mr Kwu's criminal offending commenced as a juvenile, and there is an historical pattern of similar offending both in New South Wales and Victoria including inter alia, robbery in company, robbery while armed with a dangerous weapon, aggravated break and enter and commit serious indictable offence in company.
After committing these offences on 6 June 2020 and before being arrested and charged on 13 August 2013, he was arrested and charged with an offence of conspiracy to commit an offence of in company rob while armed with a dangerous weapon between 1st February 2012 and 22 October 2012, in respect of which he was arrested while driving a motor vehicle with three co-offenders, on their way to commit the offence, not being his co‑offenders in this matter. Present in the vehicle when it was stopped on 20 October 2012 in the rear near side foot well was a Norinco pistol, forensically identified as being the weapon which was discharged at the Seven Hills NAB robbery on 6 June 2012. A lawfully installed listening device evidenced a conversation about the pistol in which one of the other offenders enquired as to how many cartridges were contained in the magazine to which Mr Kwu responded, "Eleven", which was the number of cartridges in the magazine when seized.
He has already been sentenced in respect of that matter, but it is relevant to his background in this matter as his association with the pistol was part of the circumstantial evidence relied on by the prosecution in proving the current matters.
When sentenced on 15 June 2015 for the conspiracy, he was also sentenced in respect of an aggravated break and enter and commit serious indictable offence in company, committed on 18 October 2012. The sentence imposed was an aggregate of nine years and nine months, commencing on 23 October 2012 and concluding on 21 July 2022, with a non-parole period of six years and nine months.
The indicative sentences were nine years and three months for the conspiracy, and four years and six months with a non-parole period of three years and two months for the aggravated break and enter, after a 10% discount, which may related only to the aggravated break and enter.
While Mr Kwu holds an Indonesian passport, he has been in Australia subject to a Permanent Resident Visa since he was four years of age. The Commonwealth Department of Home Affairs indicates that his visa was cancelled on 24 July 2018, as a result of which he is now an "unlawful non-citizen". As such, when released from custody he will be subject to immigration detention and ultimately liable to be removed from Australia and returned to Indonesia. He has sought a review of that decision, which has not yet been resolved and is unlikely to be finally resolved until some unknown time in the future. This has no doubt placed him under additional stress, but regardless of this matter, his extensive past criminal history is no doubt sufficient to have caused the revocation of his visa.
Mr Machlin diagnosed the offender as having a "possible history of PTSD awaiting further assessment" (there is no further assessment), "Substance Use Disorder in remission," and "Adjustment Disorder with Depressed Mood." As to the Adjustment Disorder with Depressed Mood, Mr Machlin attributed this to the "guilty verdict, long term incarceration, isolation from family and the prospect of deportation".
Mr Machlin noted the offender made no admissions of guilt and that during the last eight years of incarceration, he claims to have been exposed to intimidation and actual assault. The Corrective Services report records a total of 34 custodial misconducts since March 2013 with a significant number relating to violence, such as assault or fighting as well as damage to property.
To Ms Molly McCutcheon of Community Corrections, he attributed his criminal history to his drug addiction and anti-social associates at the time. Mr Kwu denied any involvement in the offences and explained the circumstantial case as being the result of lending his mobile phone to an employee without any knowledge of the criminal purpose to which it would be put. That is, the offender continues to protest his innocence in the face of an overwhelming circumstantial prosecution case. Ms McCutcheon assessed him as being a medium to high risk of reoffending, which I accept as appropriate.
There is no evidence of remorse or contrition, and no evidence from which any favourable assessment with the prospect of rehabilitation can be made.
[28]
SENTENCES IMPOSED BY CULVER DCJ
Each of the offenders stands for sentence on conclusion of a trial before me, which was a re-trial following a successful conviction appeal. Counsel for each of the offenders have relied on the accepted prima facie approach to re‑sentencing in those circumstances or referred to as the "Ceiling Principle" as outlined by Street CJ in R v Gilmore [1979] 1 A Crim R 416 which was reviewed together with other authorities in Tarrant v R [2007] NSWCCA 124. R A Hulme J, referred to this approach or principle in R v Lane (No. 4) [2018] NSWSC 1898 and considered the application of it as follows;
"Ceiling Principle
72. There is a sentencing principle based upon a rationale that the criminal justice system should not be perceived as punishing a person for successfully pursuing their right to appeal and thereby discouraging others from doing so. Accordingly, it is the general, although not inflexible, rule that a person should not be punished more severely when they come up for sentence again after having overturned on appeal an earlier conviction and sentence.
73. I have taken the approach that I should assess the sentence I consider should be imposed and then stand back and compare it to that which was imposed by Campbell J in order to assess whether any adjustment should be made in the light of this "ceiling principle." In other words, it is not a matter of starting with the sentence his Honour imposed and then making adjustments up or down to account for subsequent events."
I have adopted the same approach as his Honour.
The sentences imposed by Culver DCJ on 4 November 2015 were as follows:
Tony Ilievski - special circumstances re possible institutionalisation found. Steal/carry in stolen vehicle 10% discount for the guilty plea on commencement of trial: fixed term of 18 months to date from 30 September 2015 and expire 29 March 2017.
Armed robbery with a dangerous weapon: 14 years imprisonment with a non-parole period of nine years commencing 30 December 2017, eligible for release on parole 29 December '24. Sentence to expire on 29 December 2031. Lesser role found than co-offenders.
Shane Nolan - special circumstance re possible institutionalisation found. Steal/carried in stolen vehicle: fixed term of 20 months to date from 18 September 2013 and to expire 17 May 2015.
Armed robbery with a dangerous weapon: 15 years' imprisonment with a non-parole of ten years commencing 18 January 2014, eligible for release on parole 17 January 2024. Sentence to expire 17 January 2029.
Muhammad Kwu - special circumstances re possible institutionalisation found. Principle of totality taken into account as a result of the offender being sentenced on 15 June 2015 for the offences of in company rob while armed with a dangerous weapon between 1 February 2012 and 22 October 2012 and aggravated break and enter to commit serious indictable offence in company each having been committed after these offences and the subject of sentencing before the first trial of these offences as referred to above.
Steal/carried in stolen vehicle: fixed term of 20 months to date from 22 October 2016 and expire 22 June 2018.
Armed robbery with a dangerous weapon: 15 years' imprisonment with a non-parole period of ten years commencing 22 February 2017, eligible for release on parole 21 February 2027, sentence to expire 1 February 2032.
[29]
Tony Ilievski
The successful conviction appeals of the offenders did not affect the sentence imposed on Mr Ilievski for the steal/carried offence as he had pleaded guilty and it was not the subject of appeal. Accordingly, he has served the sentence imposed for that offence (30 September 2015 to 29 March 2017) prior to being released on bail subsequent to the successful conviction appeal on 27 August 2018. The sentence for this armed robbery was concurrent with the sentence for the steal/carried in offence except as to three months, so time served for the armed robbery alone, disregarding the concurrent portion of the sentence for steal/carried is 30 December 2015 to being bailed on 27 August 2018.
That is a total of 972 days or two years, seven months and 29 days.
He was again bail refused on 8 September 2020 at the conclusion of the trial.
[30]
Shane Nolan and Muhamed Kwu
In each case, the fixed term sentence for the steal/carried offence was made concurrent with the armed robbery offence except as to 4 months. In each case, although they were successful on appeal in respect of each of the two offences, the fixed term of imprisonment for the steal/carried offence had expired before the appeal succeeded.
As a matter of convenience, I will now deal with their sentences in respect of the steal/carried offence.
Each is convicted of that offence.
In my view, the sentence for that offence as imposed by Culver DCJ was in each case entirely appropriate, and a more severe sentence would attract consideration of the ceiling principle. I am unable to identify any reason that would justify a lesser sentence in respect of either offender.
As in each case the full term of the sentence has in practice been served: Shane Nolan is sentenced to a fixed term of 20 months to date from 18 September 2013 and to expire 17 May 2015.
Muhammad Kwu is sentenced to a fixed term of 20 months to date from 22 October 2016 and to expire 22 June 2018.
[31]
Muhamed Kwu re Time served for the armed robbery
Mr Kwu was not granted bail after the successful appeal and in effect he has continued in prison because of this matter and other matters until today. Accordingly, it will be appropriate when imposing the sentence for the armed robbery to take into account the date of commencement for that offence as provided by Culver DCJ. That is, 22 February 2017.
[32]
Shane Nolan re time served for the armed robbery
The sentence imposed by Culver DCJ commenced on 18 January 2014. As a result of the successful appeal, he was released on bail on 3 October 2018. He was returned to custody on 8 September 2020 after the jury verdict in the third trial and has remained in custody only in relation to this matter since then.
The period 18 January 2014 to 3 October 2018 is 1720 days, or four years, eight months and 16 days. The sentence to be imposed and this matter will need to be backdated by that period from 8 September 2020.
[33]
THE ROLES OF THE OFFENDERS
I note that when the matter was dealt with before Culver DCJ, she was unable to determine which of Mr Nolan and Mr Kwu was responsible for carrying the gun or the sledge hammer, and essentially that their roles were equal because whoever the man with the sledge hammer was, he continued with the commission of the offence even after the discharge of the gun. That is at Reasons on Sentence, Tab 6, Exhibit 1, 4 November 2015, page 38.
She also found that Mr Nolan had played a greater role than Mr Kwu in planning the offence; however, essentially in the circumstances, she stated that she was of the view that Mr Nolan and Mr Kwu's criminality in many respects were on an even footing.
In respect of Mr Ilievski, there is clearly a distinction made by her in terms of the sentence imposed, being a maximum term of one year less, with, in each case, the same parole period provided as a result of her decision that their criminal records reflected either institutionalisation or a risk of institutionalisation.
As to Mr Ilievski's moral culpability, she said also at page 38:
"As I have said, however Mr Ilievski's moral culpability, by virtue of the psychological assessment in my view is to a lesser degree than that of his co-offenders, that is limited by the fact that Mr Ilievski has had the experience of being incarcerated in the past for similar offending and must have known, despite low cognitive functioning, of the seriousness of his conduct."
While I accept her Honour's reasons were appropriate on the information before her at that time, the information before me is different. I have previously noted the partial assessment of Mr Ilievski's IQ and I have referred to those parts of the various references that have been provided, which appear to place him in an entirely different position to that as expressed by Dr Lennings. It may be that he is not a particularly bright individual, but he is certainly bright enough to have participated in what was a sophisticated conspiracy and to arrange to provide potentially an alibi evidence for himself. His actual participation in the offence was not simply to drive a motor vehicle on the date of the offence but to carry out relevant tasks prior to and after the robbery, particularly in relation to visiting the scene in advance to establish where the Mercedes might be left and to collect it later, and also dealing with it in relation to it being hidden in Ms Wilson's garage, and matters such as that that I have referred to in detail in the course of these reasons. I do not intend to repeat them at large.
I have reached the conclusion that there is no distinction between the moral culpability of any of the offenders even on the basis that Mr Nolan was the one who actually fired the Norinco pistol. It was a joint criminal enterprise: each knew what they were doing and the circumstances of what each of them would do in order to carry out the robbery. In those circumstances, in my view, each must be held liable for the conduct of each of the others. Driving the motor vehicle to and from the robbery and waiting while the others conducted the actual robbery was, indeed, a very essential part of the plan. As I have said, I approached this matter on the basis that it is necessary for me to reach my own view as to an appropriate sentence rather than be simply guided by the sentences imposed by Culver DCJ. As I have indicated, there are differences in relation to the material that was before me as would appear to have been the material before her, and a different assessment by me in relation to, particularly, Mr Ilievski and his role.
While it would be possible to impose a higher sentence on Mr Ilievski as a result of those findings, in my view, it is inappropriate to do so because of the "ceiling principle". That then raises the issue of parity with the co-offenders.
In my view, the only appropriate way of dealing with that issue is to give each of the co-offenders the same maximum sentence in respect of the armed robbery offence. I have already dealt with the sentences to be imposed for Mr Kwu and Mr Nolan in respect of the offence of be carried in a stolen conveyance.
In addition, of course, in respect of Mr Ilievski, I must deal with him in respect of the two additional matters. It has been submitted that some consideration should be given to the delay in this matter, the offence having occurred in 2012, the first trial in 2015, the successful appeal in 2018, the second trial in late 2019 and the third trial before me on 4 August 2020 and, of course, we are now at the commencement of 2021.
Mr Wendler, on behalf of Mr Ilievski, has submitted that the delay is through no fault of his client, there having been a successful appeal causing the matter to go back to retrial, and the second trial not completing because of the joint application by counsel for the accused to discharge the jury because of some perception in relation to the jury's attitude, arising from, as I understand it, the closing addresses of Mr Stewart and Mr Juhasz. I accept that the continuation of the trial over that period has no doubt created some greater degree of distress for each of the offenders.
In respect of Mr Kwu, that has no doubt had some further impact in that he has remained in custody throughout that time and, of course, he has the further distress of potentially being removed from Australia at the conclusion of any sentence, but that is indefinite and in my view does not qualify as potential extra curial punishment.
As to the delay, in my view, there being as I understand it little difference between the material placed before the Court at the first trial and the material placed before the Court in the second and third trials, although there was some minor addition particularly in relation to Mr Niuqila, and no doubt some variation in the way the matter was approached, although I am not aware of that with the exception, as I understand it, that the potential participation in the crime by that person was not an issue raised in either of the earlier trials.
This is a matter where, in my view, each of the offenders knew at the outset, having been charged with the relevant offences, that they had in fact committed them. They had the option to avail themselves of a plea of guilty and obtain the benefit of a significant reduction on sentence by doing so.
The first trial was defended and upset in the Court of Criminal Appeal on the basis that the tendency evidence in respect of the 2003 Melbourne bank robbery should not have been admitted. They were obviously correct to pursue that. But, in my view, the tendency evidence made little difference to the quality of the Crown's case in respect of the robbery in New South Wales. What was presented at trial before me did not include evidence of the Melbourne robbery as it could no longer be adduced. It was, as I have said on a number of occasions during these reasons, an overwhelming circumstantial case, even if it required careful examination and consideration to realise that it was of such a nature.
The offenders were in that case in my view essentially just as responsible for the lengthy delay in endeavouring to defend the overwhelming case as the circumstances of the delay otherwise caused by the successful appeal and the aborted trial. I will however take into account that this was a 2012 offence and it is now 2021, but that is of limited impact in relation to this sentencing procedure.
As I have previously indicated, in my view the s 5 threshold in each case has been clearly passed and there is no alternative other than the imposition of a period of full-time imprisonment. Noting again that no submission to the contrary was made on behalf of any of the offenders, such a concession was of course entirely appropriate.
Any sentence imposed by the Court must reflect the principles of sentencing as provided in s 3A of the Crimes (Sentencing Procedure) Act. In relation to offences in particular such as armed robbery, general deterrence is a very important matter to take into account.
In respect of these three offenders, considering their criminal history and past similar offending, specific deterrence is also very important to take into account. Any sentence imposed must reflect the objective seriousness of the offences for which the offender is being sentenced.
In Veen v R (No. 2) [1988] HCA 14 Mason CJ, Brennan, Dawson and Toohey JJ stated at 14:
"The antecedent criminal history of the offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind."
However what it cannot do is lead to the imposition of a sentence that is greater than what is otherwise appropriate in order to protect the community from further offending.
I have kept in mind the principle as disclosed in Veen v R, as well as the issue of totality. In my view, the sentences imposed by Culver DCJ had to in the individual circumstances take into account relevant other offending by the offenders. In my view that has already been taken into account by the starting point of the sentences imposed by her, and of course she considered totality as well.
I have previously referred to finding no significant difference in the moral culpability of each of the offenders with regard particularly to the role played by each, and in my view, although there are some difference in relation to the nature of their particular criminal histories, there is not a significant issue in this regard with the exception that I accept that Mr Kwu's prior history is probably the worst of the three.
I have already dealt with, as far as I see them, relevantly necessary aggravating factors and I do not propose to repeat that. There is of course no discount for utility as there is no utility in a defended matter. Utility in this matter is only relevant to Mr Ilievski and the additional offences that he pleaded guilty to on the first day of trial.
Taking all of those matters into account, I have established what I regard as the appropriate sentence in respect of each of the offenders. The starting point for that was to establish for myself the sentence that I would have imposed on Mr Ilievski for the armed robbery taking into account what I have previously said about the "ceiling principle" in the absence of imposing an aggregate sentence, which is what I propose to eventually do in respect of him, considering the additional offences. I will refer to his sentence last, but first let me deal with the sentence in respect of Mr Nolan.
I have already dealt with the steal/carried in offence. For the offence of armed robbery with a dangerous weapon on 6 June 2012 he is convicted. The sentence is a non-parole period of nine years commencing on 8 September 2020, backdated by what I previously referred to as 1,720 days; it commences on 24 December 2015. Mr Nolan will be first eligible for parole on 23 December 2024. I have given him the benefit of maintaining Judge Culver's findings as to possible institutionalisation if not actual institutionalisation and provide accordingly a parole period of five years. So that is a sentence of 14 years with a nine year non-parole period and the full term will expire on 23 December 2029.
In my view the period of five years allowed by her Honour was a generous variation of the statutory relationship between the non-parole period and balance of term, but I have given the offender the benefit of that even though I have reduced the total term by one year.
In respect of Mr Kwu and the offence of armed robbery with a dangerous weapon, having already dealt with the steal/carried in offence, he is convicted for the armed robbery. He is similarly sentenced to a term of imprisonment with a non-parole period of nine years and a balance of term of five years, giving a total sentence of 14 years with a nine year non-parole period. He will first become eligible for parole on 21 February 2026. The total term will expire on 21 February 2031.
In respect of Mr Ilievski, as I have indicated, I intend to provide an aggregate sentence, in which case I must specify an indicative sentence in relation to each of the offences and in relation to each of the aggravated break and enter offences, they having an applicable standard non-parole period, an indicative non-parole period. I hardly need refer to the fact that he has already served the time for the steal/carried in a conveyance which was not the subject of appeal, and there was no further charge before me relating to the specific day on which the robbery occurred. So that is not part of my consideration.
As to the indicative sentences for the offence, being 2014/00380418, s 112(2) enter and commit serious indictable offence in company, being larceny, after a 5% discount the sentence will be a term of imprisonment of four years, nine months, with a non-parole period of three years, six months and two weeks.
In respect of the further offence of the same nature, being 2015/00186493, the indicative sentence is, after a 5% discount as previously indicated, exactly the same as for the last matter. That is: a term of imprisonment of four years, nine months with an indicative non-parole period of three years, six months and two weeks.
As to the offence of robbery armed with a dangerous weapon, the indicative sentence is 14 years' imprisonment. It is not necessary to provide an indicative non-parole period for that offence as there is no standard non-parole period applying to it.
However, the aggregate sentence must take account of the two sentences that I previously referred to of aggravated break, enter and commit serious indictable offence. The aggregate sentence is a sentence of 16 years. I will provide a non-parole period of ten years six months, meaning that the maximum period of parole will be five years six months. I have allowed him an extra six months in terms of parole as a result of having provided an aggregate sentence which is increased by two years for the two other offences.
So, just to repeat that, the sentence is 16 years with a non-parole period of ten years, six months; backdated from 8 September 2020 by 972 days, the sentence commences on 10 January 2018. He will be first eligible for parole on 9 July 2028. The balance of term or parole is five years, six months and the total term expires on 9 January 2034.
I have in relation to Mr Ilievski and Mr Nolan taken into account where appropriate their breaches of parole as previously referred to. The total term of the sentence imposed is not an insignificant sentence.
Now is there anything anyone would like to remind me of or suggest that I have failed to refer to?
ABDULHUK: I'm just not sure whether your Honour has entered convictions in respect to Mr Ilievski for the armed robbery--
HIS HONOUR: Sorry. Mr Ilievski is also convicted in respect of the armed robbery and also in respect of each of the aggravated break, enter and steal offences with intent to commit a serious offence, being larceny.
Now, is there anything else?
WENDLER: No, your Honour.
STEWART: No, your Honour.
HIS HONOUR: Thank you. What I intend to do, this matter having been of considerable complexity and difficulty, I invite counsel to give consideration to the dates and figures and calculations of days, and to return to tell me if - because you will not have been able to work that out while I have been speaking, to return on some date in the near future by consultation between you if it is necessary, to tell me that I have miscalculated the days or miscalculated the appropriate starting dates to be taken into account or the end terms. That is, I would like to ensure that the matter as far as I have had to deal with it, is correct or if I have made any error, can be corrected appropriately to reflect what was intended.
[34]
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Decision last updated: 26 May 2021
Cases Cited (15)
R (No. 2) [1988] HCA 14
Category: Sentence
Parties: Regina
NOLAN, Shane Lawrence
ILIEVSKI, Tony
KWU, Muhammad Dean
Representation: Counsel:
Crown: Mr T Abdulhak
Nolan: Mr M Juhasz
Ilievski: Mr G Wendler
Kwu: Mr D Stewart
Judgment
HIS HONOUR: Shane Nolan, Tony Ilievski and Muhammad Kwu each stand for sentence in respect of an offence of aggravated robbery: that is, being armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900. The maximum penalty provided by the legislation is 25 years' imprisonment and there is no relevant standard non-parole period.
In addition, each of Mr Nolan and Mr Kwu appear for sentence in respect of an offence of drive or be carried in a conveyance contrary to s 154A(1)(b) of the Crimes Act 1900, in respect of which the maximum penalty provided is five years' imprisonment, and again there is no relevant standard non-parole period.
Tony Ilievski also stands to be sentenced in relation to two offences of aggravated break and enter and commit a serious indictable offence in company, to wit larceny contrary to s 112(2) of the Crimes Act 1900. In each case the maximum penalty is 20 years' imprisonment and there is a relevant standard non-parole period of five years, although less relevant in the circumstances of a plea of guilty but remaining relevant as a guideline or guidepost.
In respect of those two matters in respect of Mr Ilievski, I note that he was arrested and charged on 29 December 2014 for each of the offences, one occurring on 7 December 2014 and the other on 29 December 2014. He pleaded guilty to those two offences on 15 May 2017, that is, a delay of approximately three years between arrest and eventually entering a belated plea on the morning that the trial was due to commence. He is entitled to a discount for the plea, but in the circumstances of such a belated plea, a discount of 5% only is appropriate, and such a discount will be provided.
The Crown case in respect of the armed robbery and the drive or be carried in a conveyance offences was a circumstantial case, and it is necessary in those circumstances to provide a detailed summary of the facts that I have found proved beyond reasonable doubt as a result of the jury verdicts. I will first of all refer to the procedural history in relation to the matter.
On 6 June 2012 an armed robbery took place at the Seven Hills branch of the National Australia Bank located in a shopping centre then known as Centro.
As a result of a police investigation into the armed robbery, the offenders Shane Nolan, Tony Ilievski and Muhammad Kwu were charged with the following offences:
1. Shane Nolan, Tony Ilievski and Muhammad Kwu: commit an armed robbery on 6 June 2012 contrary to s 97(2) of the Crimes Act 1900 (Count 1 in the original indictment.)
2. Tony Ilievski: drive stolen vehicle between 21 May and 28 August 2012 contrary to s 154A(1)(a) of the Crimes Act (Count 2 in the original indictment).
3. Shane Nolan and Muhammad Kwu: be conveyed in a stolen vehicle on 6 June 2012 contrary to s 154A(1)(b) of the Crimes Act (Count 3 in the original indictment.)
There have been three trials in this matter.
The first trial commenced before Judge Culver and a jury on 21 April 2015. On that day Mr Ilievski pleaded guilty to Count 2 of the original indictment on the basis that he admitted to driving a vehicle on at least one occasion on a date between 27 June 2012 on 28 May 2015, namely a Mercedes sedan which had been used as the getaway car in the robbery, knowing it to have been stolen. As I understand it from the agreed facts presented in this matter, he did not agree that he was driving it on the day of the robbery but only on other subsequent days. The jury returned verdicts finding all three offenders guilty in respect of Count 1 and also finding Mr Nolan and Mr Kwu guilty in respect of Count 3. On 3 August 2018 the Court of Criminal Appeal (CCA) set aside the convictions on Count 1 with respect to Mr Nolan and Mr Ilievski as well as Mr Nolan's conviction on Count 3 (Ilievski v R, Nolan v R [2018] NSWCCA 164). On 1 April 2019, the CCA set aside Mr Kwu's conviction on Counts 1 and 3 (Kwu v R [2019] NSWCCA 75).
The CCA held that her Honour had erred in permitting the Crown to lead evidence of the participation of the three offenders in a 2003 armed robbery in Melbourne as tendency evidence. The CCA ordered that the offenders stand a new trial.
On 31 July 2019, the matter proceeded to a second trial before Craigie SC DCJ and a jury. On 23 September 2019, his Honour discharged the jury on an application on behalf of each of the three accused by their counsel. The trial had reached the stage of counsel's addresses; indeed the discharge occurred part way through the closing address of Mr Juhasz on behalf of Mr Nolan, he having followed the address on behalf of Mr Kwu by Mr Stewart. All three counsel, including Mr Wendler on behalf of Mr Ilievski, applied for a discharge application essentially on the basis that the jury had indicated they were biased against counsel due to counsel's closing addresses..
The matter was listed for a third trial on 27 July 2020 and on that day came before me. Pre-trial applications relating to the adducing of evidence via audio visual link were determined by me on 28 July 2020 and a jury of 14 was empanelled on the same day. The indictment presented at the third trial contained two counts which were substantively identical to the charges presented at the 2019 trial:
1. Commit armed robbery, armed with a dangerous weapon, in respect of all three offenders, Count 1.
2. Be conveyed in a stolen vehicle in respect only of Mr Nolan and Mr Kwu, Count 2.
There were delays in the commencement of the third trial in order to allow time for testing of Mr Nolan for the COVID-19 virus, and due to him being denied access to the court complex when he reported having a cough. The trial was further delayed when Corrective Services New South Wales placed Mr Kwu in isolation due to a concern that he had been in contact with Mr Nolan. After Mr Nolan tested negative twice for COVID-19 and Mr Kwu was able to attend, the trial commenced with the jury on 4 August 2020.
The Crown closed its case on 28 August 2020. The Crown case, by agreement between the parties, included the adducing of evidence given by Mr Kwu at the first trial in 2015. This evidence was adduced in part by the playing of an audio recording of Mr Kwu's evidence, and in relation to a part for which an audio was not available, by the reading of the transcript. The Crown case also included an Agreed Facts document in relation to Mr Ilievski's plea of guilty to the s 154A(1)(a) charge.
Mr Kwu and Mr Nolan tendered a number of exhibits during the Crown case, but did not call a case. Mr Ilievski called a case on 28 August 2020, which included one witness and a number of exhibits; however, he did not himself give evidence in his own case.
Counsel's addresses concluded on 2 September 2020. The jury returned its verdicts on 8 September 2020 and found all three offenders guilty on Count 1 and Mr Nolan and Mr Kwu guilty on Count 2.
In relation to Mr Ilievski's plea of guilty to Count 2 at the commencement of the 2015 trial, he was sentenced by Culver DCJ to a fixed term of imprisonment of 18 months. That sentence was not the subject of any appeal.
In addition to Count 1, of which the jury found him guilty at this trial, Mr Ilievski stands to be sentenced for two unrelated charges of aggravated, break and enter and commit serious indictable offence contrary to s 112 (2) of the Crimes Act as I have already referred to. He pleaded guilty to those charges before the District Court as indicated on 15 May 2017, the first day of the listed trial.
I find beyond reasonable doubt the following facts for the purpose of sentencing in this matter consistent with the jury verdicts:
The purpose of the journey around Seven Hills late at night on 5 June 2012 was, I accept, to identify a location in which the getaway vehicle could be left immediately after the robbery and from which it could later be collected if possible. The evidence indicates that the offenders selected an area in the vicinity of Abigail Street in Seven Hills. The nature and extent of these activities, as well as the fact that they were carried out well in advance of the robbery, all indicate that there was a significant degree of planning for the robbery.
That objectively increases the gravity of the offending because the robbery could not be said to be an impulsive "on the spur" act.
In preparation for the armed robbery, Mr Nolan was making efforts to contact Mr Niuqila. Mr Nolan's communications with Mr Kwu and Mr Niuqila show that Mr Nolan was seeking to recruit Mr Niuqila as the fourth participant in the armed robbery at Seven Hills. The purpose may well have been to ensure that there was one offender present in the bank who would be able to control the public area of the bank while the other two offenders sought to go into the secured area where the tills and the safe were located. It is apparent that because of the delay in being able to access the rear secured area, there was insufficient time in which to potentially access by way of the use of a sledge hammer the safe, which was in the rear area, and no attempt was made.
But I conclude that the taking of the sledge hammer was for the purpose of either gaining entry through the security door and/or attacking the safe as had occurred in Melbourne at the Commonwealth Bank. Mr Nolan made contact with Mr Niuqila on a number of occasions on 5 June and tried to contact him on 6 June. Consistent with the joint nature of the enterprise, Mr Nolan was keeping Mr Ilievski informed of these activities.
The evidence in the case is that Mr Nolan relied on Mr Kwu to confirm the arrangements with Mr Niuqila. Nevertheless, Mr Kwu, for reasons only known to him, told Mr Niuqila not to answer his phone and told Mr Nolan that he had been unable to reach Mr Niuqila.
It was advanced on behalf of the accused that Mr Niuqila may have been one of the three persons involved in the robbery. The jury's verdicts indicate that they concluded beyond reasonable doubt that he did not take part in the armed robbery.
The three offenders continued to coordinate their activities on 6 June 2012 in the hours leading up to the armed robbery:
1. In the morning of 6 June, Mr Nolan had a number of phone calls with Mr Kwu and Mr Ilievski including in relation to Mr Niuqila.
2. Mr Kwu drove to Newtown to meet with Mr Nolan.
3. Mr Ilievski drove to a location in Prospect which is near a Kennards Hire Store at which the offenders met one hour before the armed robbery.
4. A day after this, his meeting with Mr Kwu at Newtown, Mr Nolan went to Ms Wilson's residence at Ashfield where he waited for Mr Ilievski to pick him up.
5. Mr Kwu confirmed the time and location of the meeting in a message to Mr Nolan being 1.30pm near the Kennards store at Prospect.
6. Mr Ilievski picked up Mr Nolan from Ms Wilson's residence and the two of them travelled in the Mercedes getaway vehicle to Prospect.
7. While Mr Nolan and Mr Ilievski were en route, Mr Ilievski maintained contact with Mr Kwu using a new phone number he had obtained on or about the previous day.
8. The offenders met at Prospect at about 1.42 and then proceeded to carry out the robbery at Seven Hills.
The getaway car first arrived in the vicinity of the rear entrance to the Centro at 2.37pm; it drove away but returned at 2.42pm, which is when the armed robbery began. The first trip was consistent with the offenders carrying out final recognisance before the armed robbery actually began, again reflecting the careful planning and the execution of the robbery, no doubt to determine whether there was anyone parked in the spot which they wished to use, which was essentially out of the range of any particular CCTV camera.
After the robbery, there were two trips in the vicinity of Abigail Street in Seven Hills on 6 June 2012, where I accept the getaway vehicle was parked. The first of those trips was a trip by Mr Ilievski less than three hours after the robbery for the purpose of determining whether the vehicle had been discovered as yet by the authorities, and secondly a trip by all three offenders, which I find was to collect the getaway vehicle and return it to Ms Wilson's garage late at night on 6 June 2012, again to hide it from potential discovery by the authorities.
A further element of the planning of the offence was the use of measures to avoid detection/surveillance. In the period leading up to the robbery and in the weeks after the robbery, Mr Nolan and Mr Ilievski changed their telephone numbers a number of times. Both offenders started using new numbers on 5 June 2012. Mr Ilievski used his new number almost exclusively to keep in contact with Mr Kwu and Mr Nolan: indeed, the late introduction of this new number achieved what the Crown submits, and I accept, was its desired effect, that is, it precluded the police from intercepting Mr Ilievski's service on 6 June 2012. Mr Kwu also obtained a new number, albeit somewhat earlier, on or about 10 May 2012.
In addition to the changing of the phone numbers, the offenders adopted the following measures to conceal their activities: