R v Priest; DPP v Priest [2002] VSCA 215

Court of Appeal (Vic)|2002-12-19|Before: ORMISTON and CALLAWAY, JJ.A. and O'BRYAN, A.J.A.

CRIMINAL LAW - Armed robbery - Evidence of unrelated criminality - Whether directions thereon sufficient - Whether prosecutor suggested applicant should call certain witnesses - Whether direction required - Whether Jones v. Dunkel direction should have been given against the Crown - Whether certain evidence was insufficiently relevant to be admissible - Whether jury should have been directed to exclude that evidence from their consideration - Whether aggregation of defects caused trial to miscarry - Prosecution case dependent on uncorroborated evidence of accomplice - Whether verdict unsafe and unsatisfactory - Crown appeal against sentence - Sentence of four years' imprisonment with non-parole period of two years manifestly inadequate - Double jeopardy - Parity with co-offenders - Delay - Sentence of five years' imprisonment with non-parole period of three years substituted - Crimes Act 1958, ss.567A(1), 568(1).

On this application for leave to appeal against conviction and on the Director's cross-appeal against sentence I have had the benefit of reading in draft form the reasons for judgment of Callaway, J.A. I agree, for the reasons he has stated, that the application should be dismissed and I likewise agree, for his stated reasons, that the Director's appeal should be allowed, though I agree in the proposed new sentence only with some reluctance. My reluctance again goes to the modest sentence which is being substituted for a truly serious and reprehensible armed robbery. The Court is constrained by two judicially propounded rules, those of double jeopardy relating to sentence and those relating to parity and disparity in sentencing, to impose a sentence far less than that which the respondent Priest deserved. The circumstances of the offending are set out in the judgment of Callaway, J.A., which shows that there were factors of planning and high danger to those involved in their daily activities which made it an armed robbery which called for condign punishment. For the present I would merely reiterate that offending of this seriousness ordinarily deserves a significantly higher sentence and that the outcome of this case should not be used as the basis for sentencing a person found guilty of a similar offence in the future.

After a trial in the County Court lasting five days Lal Geoffrey Priest was found guilty on one count of armed robbery. Following a plea, the learned trial judge sentenced him to four years' imprisonment with a non-parole period of two years. Priest seeks leave to appeal against conviction and the Director of Public Prosecutions, on behalf of Her Majesty,[1] appeals against the leniency of the sentence. As Priest is the applicant in the first proceeding and the respondent in the second proceeding, it will be convenient to refer to him by name throughout these reasons.

Before turning to counsel's submissions I shall give an overview of the fact according to the Crown case. Some of the evidence will need to be referred to in more detail later.

The co-accused Peter John Synan and Mark Anthony Caudwell were well known to each other. They had, among other things, committed an armed robbery together at a bank at Seville. Towards the end of 1993 Synan approached Caudwell and told him that he had another robbery lined up through his brother-in-law, Geoff Priest. They drove to Priest's home in Upwey and then the three men travelled in Priest's car to a Safeway store in Preston. On the way they discussed how they would steal money from a Brambles security van at the store. According to Caudwell, Priest said that he had a Brambles security van guard or driver on the inside giving him information. When they arrived at the store they conducted a reconnaissance of the site. Priest suggested that they use two-way radios and pointed out a getaway route down a side-street next to the shopping centre in which the store was located.

The robbery was committed on 24th January 1994. Some time earlier Synan and Caudwell had driven to the store intending to rob the van, but it did not turn up and they abandoned that attempt, treating it as a "dummy run". They had been told that Brambles collected two takings from Safeway in the order of $150,000 and $75,000 respectively. On 24th January they missed the first because of difficulties with their two-way radios but decided to try for the second.

There was a brick wall near the loading ramp, which Caudwell said Priest had suggested that they should use as a shield. Caudwell waited near the wall and Synan watched for the van. When he signalled that two guards were approaching carrying a bag, Caudwell stood up on a milk crate he had placed near the wall, leant over it and confronted the guards with a handgun. He yelled to them to throw the bag over the wall, which they did, and instructed them to lie on the ground and not move. Synan and Caudwell then grabbed the bag and ran to the first of two stolen getaway cars that they had positioned. They drove to the second, changed to that car and drove to Caudwell's car, which was also parked in readiness. Caudwell said that Synan then rang Priest, first on Caudwell's mobile phone and then on his own. They went to Priest's mother's house in Mooroolbark, where they divided the proceeds of the robbery. Caudwell and Synan received $20,000 each. The total haul was $62,720.

Although the police suspected Synan and Caudwell of being involved in the armed robbery, and interviewed Caudwell at least twice, no charges were laid until Caudwell surrendered to police in Queensland in 1997 and made a full confession implicating both Synan and Priest. Synan and Caudwell pleaded guilty. I shall refer to their sentences when I come to the Director's appeal. As I have said, Priest stood trial and was convicted.

Three grounds of appeal were substituted by order of the Registrar made on 6th November 2002. Mr Grace agreed in the course of argument that ground 1(b)(ii) could not succeed. The other grounds read:

"1. The learned trial judge erred in his directions to the jury: (a) by failing to direct the jury adequately, or at all, in relation to the suggestion by the Crown prosecutor that the applicant was under an obligation to call Peter Synan and Peter Djordjevic to give evidence; (b) by failing to direct the jury adequately or at all concerning the evidence relating to Djordjevic.

Particulars

(i) failing to direct the jury that the evidence concerning Djordjevic was irrelevant and should be excluded from jury considerations;

...

(iii) failing to give to the jury a Jones v. Dunkel direction adverse to the Crown in relation to the Crown's failure to call Djordjevic; thereby giving rise, either singularly, or in combination, to a substantial miscarriage of justice. 2. The learned trial judge erred in failing to exclude evidence of criminal propensity on the part of the applicant given by Caudwell in relation to the unlawful receipt by the applicant of stolen golfing equipment, thereby giving rise to a substantial miscarriage of justice. 3. The verdict of the jury is unsafe and unsatisfactory.

Particulars

(a) Upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. (b) The uncorroborated evidence given by the prime prosecution witness, Caudwell, lacked credibility for reasons which are not explained by the manner in which it was given."

I shall deal with ground 2 first because it must clearly fail. I shall then turn to the two grounds that require more detailed consideration.

Questions were asked of Caudwell in examination-in-chief designed to show the history of his dealings with Priest. On one occasion they had met at a private home in Ashwood. Caudwell gave evidence to the effect that he and Synan had stolen some golf clubs, which they sold to Priest at that meeting. As Caudwell had not referred to the golf clubs in his statement to the police, he was cross-examined on that incident. It was referred to again by the prosecutor when he cross-examined Priest. The purchase of the golf clubs was also mentioned by the prosecutor in the course of his final address, but he did not suggest that it showed a criminal propensity.

The learned judge dealt with it as follows in the course of his charge:

"There is some suggestion in Caudwell's evidence that they stole golf clubs and that the accused man bought them. I do not know whether there was any suggestion that that was supposed to be an illegal transaction. It all depends on Caudwell's evidence, of course, but it is very important that you remember that you put any suggestion of other wrongdoing out of your mind. I repeat, it depends on your acceptance of Caudwell about that, but that has got nothing to do with the case."

Mr Grace submitted that the vice in this evidence could not be cured by a direction at that stage. He referred, by way of example, to Crofts v. R.[2] and R. v. Thompson[3]. I do not accept that submission. His Honour's direction that any suggestion of other wrongdoing had nothing to do with the case and the jury were to put it out of their minds was sufficient in the circumstances and counsel for Priest was quite right not to take exception.

I return to ground 1, under cover of which a number of points were made. Some of them related to the alleged role of one Peter Djordjevic. In opening the Crown case, the prosecutor said that Caudwell would give evidence that Priest told him that he knew someone on the inside at Brambles who was giving him information. The prosecutor told the jury that a connection would be established between Priest and Djordjevic, "a chap who worked at Brambles on the armoured vans there", and that that connection would support, or be consistent with, that part of Caudwell's evidence. Neil Kavanagh and Thomas Herd, former armoured car crew from Brambles, and Ivan Krznaric, a former escort guard with that company, were asked questions about Djordjevic and Priest was extensively cross-examined about his association with Djordjevic. As we shall see, the Crown was still relying on that association when it came to the prosecutor's final address.

One submission made under cover of ground 1 was that the prosecutor's questions about Djordjevic in his cross-examination of Priest implied that Priest should have called Djordjevic as a witness. When the matter was explored in argument, Mr Grace conceded that none of the questions carried that implication. Another submission was that the prosecutor's questions implied that Priest should have called Synan as a witness. (I shall refer to some of those questions again under ground 3.[4]

) It is not clear to my mind that they carried that implication, but the judge thought that they did and, in the course of discussions with counsel, said that he would direct the jury that any suggestion that Priest should call Synan or Djordjevic was wrong. His Honour gave no such direction but no exception was taken. The reason is that, in the course of his closing address, the prosecutor expressly disclaimed any interest in the question whether Synan should have come to court. Those two submissions should not be accepted.

Three further submissions were made under cover of ground 1. One of them reflected ground 1(b)(iii). The second reflected ground 1(b)(i). The third was that, even if none of the matters individually complained of caused the trial to miscarry, taken together they worked a miscarriage of justice.

There was a deal of debate before us as to whether his Honour should have given a Jones v. Dunkel[5] direction against the Crown in relation to its omission to call Djordjevic, as proposed in ground 1(b)(iii). The Director submitted that the prosecutor had been under no obligation to call Djordjevic and that in any event, the point not having been taken below, this Court simply did not have before it the information that would be necessary to sustain that ground. He referred in particular to the following passage in the judgment of Gaudron and Hayne, JJ. in Dyers v. R.[6]:

"Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses."[7]

In my opinion the Director's submission on this point should be accepted. We do not have the information necessary to say that there were such exceptional circumstances.[8] I do not overlook Mr Grace's reliance on the decision of this Court in R. v. GEC[9], but the leading judgment there was primarily concerned with the distinction between not calling a witness at all and calling a witness but omitting to ask questions on a specific topic. That issue was expressly left open in Dyers v. R[10]. More general observations in that case on which counsel relied[11] must be read subject to Dyers v. R.

There are formidable difficulties in the way of accepting the submission that the learned judge should have directed the jury that the evidence concerning Djordjevic was irrelevant. First, it was not submitted below that that evidence had such a remote bearing on the case as to be inadmissible. Secondly, there was no application to discharge the jury. Thirdly, no direction was sought to the effect of the direction in ground 1(b)(i). Before deciding whether those difficulties are insuperable, I shall refer to the relevant part of the charge and the way in which the Crown ultimately sought to rely on the impugned evidence.

Immediately after the passage from the charge set out at [10] above, his Honour said:

"Similarly with the man, Djordjevic. You have heard evidence about Djordjevic. The documents that have been tendered contain documentation which confirm the employment of the accused by Djordjevic and the fact that Djordjevic, I think, at one stage gave some endorsement to the accused, and witnesses were asked questions, 'Did you know if Djordjevic worked for Brambles, and did you know whether Djordjevic was on this route?' In his final address Mr McKenna disavowed any suggestion that he had there a fourth person in this enterprise, so it is said, and that is right, because on that flimsy material - you have got to decide the case on the evidence that is brought before you and it would be wrong to speculate about Djordjevic or whatever. The fact is that you know that Djordjevic worked for Brambles, and occasionally he might have been on this Preston run. End of story. To go further than that, to go further than that would be perverse. You could use it. The evidence would entitle you to say that he knew someone, the accused knew someone at Brambles, but further than that you could not go. Now what you make of that in the scheme of things, that is a matter for you, but it would be very important for you in this case not to say that because of that evidence you could therefore conclude that the Crown has established that this man, Djordjevic, was allegedly the fourth man. But as I say, Mr McKenna, did not disavow that. He did not argue that that is the way you should look at it."

Mr McKenna was the prosecutor. Miss Sutherland, referred to in passages to be quoted later, was defence counsel. The last sentence of the passage set out in this paragraph makes it clear that there was a slip in the second-last sentence and that his Honour had intended to say "disavowed" rather than "did not disavow".

I agree with Mr Grace that that direction was not an instruction to disregard the evidence about Djordjevic. On the contrary, the jury were told that what they made of it in the scheme of things was a matter for them. His Honour's primary concern, which emerged also in his discussions with counsel prior to final addresses, was to make sure that the jury understood that they could not conclude that Djordjevic was the Brambles guard allegedly passing information to Priest. Moreover, whilst it is right to say that the prosecutor disclaimed any suggestion that Djordjevic was the fourth man, it is not the case that he resiled from his reliance on the evidence of association between Djordjevic and Priest. On the contrary, he said this in the course of his closing address:

"There is the separate evidence I just want to mention to you of the association, the agreed association, between the accused man and the man Peter Djordjevic who worked at Brambles. What the Crown says about that is all that evidence indicates a very strong association between those two people. What it shows is an ability of the accused man Priest to gain access to somebody who had specialist information. Now the Crown couldn't say on the evidence here, if you had Djordjevic in the dock, that Djordjevic was guilty, because there is no direct evidence really against him - none at all, really - because it's all what Caudwell says he was told about the man on the inside. Caudwell never says, 'I knew the name Djordjevic,' he was never told that. And why would he need to be told the name of the man on the inside? So the Crown can't say and it's not even an issue for the Crown to have to consider whether Djordjevic is the man who provided the information. For all we know, Djordjevic may have put Priest in contact with some mate of his at Brambles. We don't know and there's no point speculating about it. It's not part of the Crown's requirement to prove this issue. The only issue is whether you can believe Caudwell when he says, 'Priest said to me I've got information from someone on the inside.' What I say and I've already said to you, and I'm probably boring you in relation to it, is that the nature of the information doesn't identify who provided it but it surely identifies that it came from an inside person with knowledge of specifics in relation to Brambles." (Emphasis added.)

That was not the only reference in his closing address to Priest's association with Djordjevic.

Now it is true that, although logic is the test of relevance, not all evidence which is logically relevant is legally admissible. The logical connection between a fact and the issue to be determined may be so slight that the fact is treated as too remote and the evidence of it is inadmissible.[12] The Crown case here rested largely on the evidence of Caudwell, which included a claim that Priest had told him that he had a Brambles security van guard on the inside giving him information.[13] The prosecutor was endeavouring to show that Priest was a man who might have access to that kind of inside information. The difficulty is that, unless the evidence established at least a real possibility that Djordjevic was the fourth man or otherwise involved, it mattered little that Priest had an association with him. The prosecutor's disclaimers in his closing address and the learned judge's direction come close to depriving the evidence of association between the two men of any probative force at all. At most it showed that Priest could have known a Brambles guard on the Preston run.

I need not pursue this matter to a conclusion or refer in detail to the evidence on this topic given by Kavanagh, Herd, Krznaric and the applicant. The short answer to the submission that a direction should have been given that the evidence about Djordjevic was irrelevant and therefore to be disregarded is that, in the circumstances of this case, the difficulties to which I adverted in [16] above are insuperable. As no objection was taken to the admissibility of the evidence at trial, it cannot be said that there was "a wrong decision on any question of law"[14]. It would have to be shown that the omission to give the direction nevertheless occasioned a miscarriage of justice. In some cases that burden can be discharged, as for example where highly prejudicial evidence is wrongly received and defence counsel could not have had a forensic reason for letting it in. But that is not this case. The evidence concerning Djordjevic and Priest's association with him, to the limited extent to which it was left to the jury to consider, was a distraction. Defence counsel called it a red herring in the course of her closing address and criticized the Crown for not calling Djordjevic. The evidence occupied a good deal of the trial, but in the end there is insufficient risk that it made the difference between the jury's accepting, or not accepting, Caudwell's evidence for this Court to say that the trial miscarried and a direction should have been given that was not sought.

The "aggregation of defects" submission remains to be considered. Here it is an aggregation of alleged defects argued under cover of one ground.[15] More often, it is an aggregation of alleged defects under cover of several grounds, but the position is the same. In R. v. Kotzmann[16] Batt, J.A. explained that it is well established that a court of criminal appeal may conclude that there has been a miscarriage of justice even if all the individual grounds fail. In the present case, however, the reasons I have given for rejecting the individual submissions made in support of ground 1 inexorably lead to the conclusion that, even if the complaints are taken together, there was no miscarriage of justice.

Ground 3 is to the effect that the verdict of the jury was unsafe and unsatisfactory in the sense explained by the High Court in M v. R.[17] and Jones v. R.[18], i.e. that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.[19]

Caudwell was the only witness called by the Crown who gave evidence linking Priest with the offence. It was common ground that his evidence was uncorroborated, but it was not totally unconfirmed. Telephone records did show calls, first from Caudwell's and then from Synan's mobile phone[20], to Priest's home telephone number at the times Caudwell said they were made.[21]

The jury were directed that there was no corroboration and warned that it was dangerous to convict on the uncorroborated evidence of an accomplice. Nevertheless, Mr Grace submitted, there were such "fundamental flaws and weaknesses" in Caudwell's evidence that the jury ought to have had a reasonable doubt as to Priest's guilt. Counsel identified five such flaws and weaknesses, which were summarized in his outline of submissions as follows, omitting transcript references:

"Prior convictions During cross examination, Caudwell was questioned in relation to his numerous prior convictions. These included crimes of violence and danger (including a very violent road rage incident and other armed robberies), dishonesty offences, calculated acts of deception, forgery, abduction and absconding from police. Previous lies told in court Not only did Caudwell give evidence that he was a self confessed liar, but he also admitted to a number of previous court appearances during which he lied, deceived and/or misled the court including at committal proceedings in this prosecution. False statements and lies told to the police Furthermore, Caudwell admitted to making statements to police regarding this matter which included false information that he knew to be false at the time of signing the statements. He also admitted to lying to the police in his record of interview. Motive to lie in these proceedings It was clear from Caudwell's evidence and from the plea and sentence in relation to this and other matters that he received a substantial informer's discount. It was also suggested that Caudwell had an additional motive to lie, given the ill feelings and animosity between [him] and the applicant, although he denied that he held a 'grudge'. General bad character Finally, Caudwell made admissions concerning his general bad character and lack of credibility."

I have examined Caudwell's evidence with those criticisms in mind. The alleged "grudge" related to an altercation in a hotel concerning which Caudwell and Priest gave different accounts. The jury were well able to evaluate its significance. Counsel's submissions, whilst accurate, put the attack on Caudwell's credit at its highest. I agree with the Director that the jury were entitled to think that he was candid in his acknowledgment of his prior convictions and past history and to accept his evidence. It was not tainted by internal discrepancies.[22] The jury evidently saw the case as one of oath against oath, for they requested and were given copies of the transcript of Priest's and Caudwell's evidence.

Not only were the telephone records consistent with Caudwell's account but there was also a telling point to be made from Priest's answers to certain questions that he had been asked in cross-examination. It was established that he had visited Synan in prison and was aware at that stage of Caudwell's claim that Synan had telephoned Priest immediately after the robbery. He was asked whether he had asked Synan about those alleged telephone calls and what they were about if they had been made. He said that he had not inquired. In his closing address the prosecutor suggested to the jury that that answer had been true. Priest had not asked about the telephone calls because he knew that they had been made and what they were about.

In my opinion, on the whole of the evidence, the jury were entitled to be satisfied beyond reasonable doubt that Priest was guilty and that Caudwell's account of his involvement was true. It follows that I would dismiss the application for leave to appeal against conviction. I turn to the Director's appeal against sentence.

"1. The sentence imposed in respect of count 1 was manifestly inadequate with respect to both the head sentence and the non-parole period. 2. In fixing a term of 4 years with a non-parole period of 2 years in respect of count 1 the sentencing judge - (a) failed to adequately reflect the gravity of the offence generally and in this case in particular; (b) failed to take into account or sufficiently to take into account the aspect of general deterrence; (c) gave too much weight to factors going to mitigation. 3. The sentencing judge erred in his application of the principle of parity in that he gave too much weight to the sentences which had been imposed on the co-accused Caudwell and Synan."

Caudwell was sentenced by Judge Dixon on 10th July 1998. He had pleaded guilty to four counts of theft, three counts of armed robbery, one count of administering a substance capable of interfering with a person's bodily functions and one count of robbery. Count 9 was the count corresponding with the count on which Priest was later convicted. On that count he was sentenced to two years' imprisonment. The sentences imposed on the other counts, together with directions for cumulation, resulted in a total effective sentence of four years and ten months' imprisonment. A non-parole period of three years was fixed. After referring to Caudwell's rehabilitation, his assistance to the police and his undertaking to give evidence against co-offenders, his Honour said this in the course of his sentencing remarks:

"It is clear that you are remorseful for the crimes you have committed. Your gaol sentence will be served under protection and thus will be more onerous and still fraught with danger. I take into account the psychological report, Exhibit 1, and the fact that you are [a] capable and hard worker. I have consulted the cases on the discount which should be given in the circumstances of one who actively assists the police and though each case depends on its own facts I have decided to make an allowance of approximately one half together with a discount for pleading guilty and assisting the police generally in relation to what you had done in the past."

Synan was sentenced by another judge on 29th March 2001 and resentenced by the Court of Appeal.[23] He had pleaded guilty to two counts of armed robbery. The first was the armed robbery committed at Seville and the second the one with which we are concerned. He was re-sentenced on each count to five years' imprisonment. A direction for cumulation resulted in a total effective sentence of seven years' imprisonment, to be served concurrently with an uncompleted sentence that he was already undergoing. His eligibility for parole was fixed at three years from the date of sentence in this Court.[24] Batt, J.A., who delivered the leading judgment, emphasized that each sentence of five years' imprisonment had been reduced to take account of the principle of totality.[25]

It is apparent, both from the transcript of the plea and from his Honour's sentencing remarks, that the learned judge was much influenced by the sentences imposed on Caudwell and Synan. Like Batt, J.A. in R. v. Synan[26], he understood Judge Dixon to have given Caudwell a discount of approximately 50% for his co-operation with the authorities and a further discount for pleading guilty. On that basis he suggested, in the course of the plea, that the sentences imposed on Caudwell and Synan were similar.

In his sentencing remarks the learned judge said:

"Mr McKenna addressed argument to the court that in your case a higher sentence than that imposed on your co-offenders was justified, which submission no doubt was based largely on the fact of that conviction for [robbery in company] which attracted that lengthy sentence of imprisonment many years ago. Alternatively, Miss Sutherland contended that there was no justification for imposing a term of imprisonment which was in parity longer than that imposed on either of the co-offenders. She argued that a comparison of the criminal records of your co-offenders, the passage of some 29 years between the 1965 conviction and your involvement in this offence, the absence of any further significant convictions and the character evidence led on your behalf, which was positive on the question of your rehabilitation, answered Mr McKenna's submission. Having considered the matter, I hold that Miss Sutherland's submissions are well-founded and that taking into account the reasons advanced for the sentences imposed on your co-accused, a term of imprisonment longer than directed in Synan's case is not warranted."

In my respectful opinion, that reasoning was erroneous. One of the principal factors, if not the principal factor, distinguishing both Caudwell and Synan from Priest was that they were entitled to a discount for their pleas of guilty and he was not. Caudwell, of course, received an informer discount too. The prosecutor had relied on those matters in the course of the plea. Miss Sutherland's submissions, as summarized by his Honour, did not justify his conclusion.

This is not, however, an appeal against sentence under s.567(d) of the Crimes Act 1958. If it were, a material error would re-open the discretion and oblige this Court to consider the matter for itself, although we might still conclude that no different sentence should be passed. A Director's appeal under s.567A is different. As sub-s.(1) of that section makes clear, it is "brought in the public interest".[27] As a general rule, if a sentence is within the range, there is no public interest in disturbing it just because the judge makes an error in his or her reasoning. To do so is, in effect, to punish the respondent for the judge's mistake. That is why it is ordinarily necessary, as the Director properly conceded, for him to show that the sentence is manifestly inadequate. Then the public interest supervenes and the respondent will usually be re-sentenced.[28]

There is no doubt that a sentence of four years' imprisonment with a non-parole period of two years was very lenient. Armed robbery is a serious offence and this was a bad example. The maximum custodial penalty for armed robbery at the relevant time was 20 years' imprisonment.[29] Priest instigated the offence, helped to plan it and shared in the proceeds. He advised Caudwell and Synan to destroy evidence afterwards. He admitted 14 previous convictions from four court appearances, including three robberies in company, but those robberies were committed when he was a teenager and his last conviction was in 1977. Caudwell's and Synan's criminal records were far worse.

This Court was at pains to emphasize that the sentences that it imposed on Synan reflected the peculiar circumstances of his case, especially the requirements of totality, and warned that they were not to be cited as precedents.[30] If a sentence of five years' imprisonment imposed on a man who pleaded guilty was so lenient as to call forth that warning, a sentence of four years' imprisonment imposed on a co-offender who stood trial must be outside the range unless he was less culpable or there were very powerful mitigatory factors.

His Honour considered that there were such mitigatory factors. He said:

"Miss Sutherland, in her plea, placed emphasis on your rehabilitation, and on this question, she called character evidence from Marco Satichen, a member of the legal profession, and Julie Elman, whose testimony was positive. I accept that you have been a loyal friend and an attentive family man, and at some personal domestic disruption, have given considerable assistance to a young muscular dystrophy sufferer who is in need of family support. You have also in recent years suffered the cruel misfortune of the death of two of your children. I have already remarked on the fact that you worked in the security industry as a crowd controller. It appears you were so engaged for some seven to eight years prior to 1997, however, that connection with the security industry is somewhat blighted by your passing on of information about Brambles Security to your co-accused. I was told that you are now aged 57 and suffer from a hernia, which may need an operation, and that condition, I accept, will add to the rigours of a gaol sentence, but I have no doubt that your condition can be adequately treated within the prison system. Miss Sutherland also submitted that in your case there had been a substantial delay between being interviewed by the police about this matter and being charged, and that would appear to be the case."

Although Caudwell confessed in October 1997, Priest was not interviewed until April 2000 and not charged until February 2001. He was sentenced on 19th June 2002. In the meantime, Mr Grace submitted, he had resumed the rehabilitation evident in his clean record since 1977.

Some, at least, of the mitigatory factors to which the learned judge referred and on which counsel relied are entitled to considerable weight, but the conclusion is inescapable that a sentence of four years' imprisonment is manifestly inadequate. (It is easier to reach that conclusion because, as I have explained[31]

, we can see how his Honour fell into error. But for that oversight, he would not have imposed the sentence that he did.) It is implicit in the observations of this Court in R. v. Synan that, in the ordinary course, Synan's sentence would have been a good deal longer than five years notwithstanding his plea of guilty and what were acknowledged to be substantial prospects of rehabilitation.[32] It was the same armed robbery and,

despite the difference in their roles, Priest was at least equally culpable. In my opinion the appeal should be allowed, but the mitigatory factors, including the delay, must still be taken into account.

In re-sentencing Priest we must bear in mind not only the principle of double jeopardy but also parity with his co-offenders. The precise train of reasoning by which Judge Dixon arrived at two years' imprisonment in the case of Caudwell and the Court of Appeal at five years' imprisonment in the case of Synan is not important. Parity requires only that the sentence we impose should not engender a justified sense of grievance when the objective differences between the three offenders are borne in mind. In the circumstances I have described I would sentence Priest to five years' imprisonment with the same caveat as in the case of Synan that the sentence is affected by peculiar factors and not to be cited as a precedent. I would fix a non-parole period of three years.[33]

I have had the advantage of reading in draft form the reasons of Callaway, J.A. in which he reaches the conclusion that the application for leave to appeal against conviction should be dismissed. I agree and only wish to add the following.

The evidence concerning Djordjevic and his association with Priest was probative of Caudwell's evidence that Priest told him that he had access to a Brambles security guard. The evidence was admissible to support the evidence of Caudwell, but not to prove that Djordjevic played a conscious role in the robbery.

The judge's directions to the jury on this issue were very favourable to Priest. His Honour told the jury that:

"it would be wrong to speculate about Djordjevic or whatever. The fact is that you know Djordjevic worked for Brambles, and occasionally he might have been on this Preston run [meaning as a security van driver]. End of story."

The judge was required to discuss the evidence relating to Djordjevic because the evidence was admissible. In doing so, I consider that he reduced the 'sting' of the evidence about Djordjevic which was intended by the Crown to support Caudwell's evidence that a fourth person was involved in providing inside information to Priest.

I agree in the reasons of Callaway, J.A. that the Director's appeal should be allowed and that a new sentence of five years be imposed and a non-parole period of three years fixed.

[1] Crimes Act 1958, s.567A(1); R. v. Corless (1997) 93 A.Crim.R. 594 at 599.

[7] See also R. v. Alexander and McKenzie [2002] VSCA 183 at [54].

[11] R. v. GEC at [45], [48] and [49].

[12] See R. v. Stephenson [1976] VicRp 34; [1976] V.R. 376 at 380-381 and R. v. Mercuri (unreported, Court of Appeal, 28th November 1997) in my judgment at 8 and compare Smith v. R. [2001] HCA 50; (2001) 75 A.L.J.R. 1398 at [7]. Smith v. R. was a case about the Evidence Act 1995 (N.S.W.).

[13] Caudwell also testified that Priest said that, if the money were in a Glomesh bag with a dye bomb, that would not be a problem, because he would "just get his driver to come along with a special key and open it up." That rebuts any suggestion that the fourth man's involvement may have been innocent.

[14] Crimes Act 1958 s.568(1).

[15] That appears from the concluding words of ground 1 and counsel's written outline but, if ground 2 was intended to be included, I would still reject the submission.

[16] [1999] VSCA 27; [1999] 2 V.R. 123 at [114]. All three members of the Court upheld this ground, so what his Honour said forms part of the ratio decidendi.

[19] Crimes Act 1958 s.568(1); MFA v. R. [2002] HCA 53 at [25], [46] and [58].

[20] Strictly speaking, it was Synan's mother's phone, but it was used by him most of the time. Both calls went through the Preston transmission tower.

22] The only discrepancy Mr Grace identified related to Caudwell's evidence about the way in which the proceeds of the robbery had been split up. I do not think there was a discrepancy but, if I am wrong in my reading of the evidence on that point, it was not material.

[23] R. v. Synan [2002] VSCA 38.

[27] See Director of Public Prosecutions v. Bulfin [1998] 4 V.R. 114 and Director of Public Prosecutions v. Doherty [2002] VSCA 213 at [30] per O'Bryan, A.J.A.

[28] I say "usually" because there may still be considerations that justify the Court in refusing to intervene: see, for example, R. v. Boxtel [1994] VicRp 54; [1994] 2 V.R. 98 at 104-105 and R. v. Clarke [1996] VICSC 30; [1996] 2 V.R. 520 at 522 (proposition 5).

[30] At [20] per Batt, J.A. and [22] per Winneke, P.

[33] In proposing this sentence, including the non-parole period, I have taken into account the course certificates tendered by Mr Grace. The propriety of doing so on re-sentencing is well established: see, for example, R. v. Carroll [1991] VicRp 87; [1991] 2 V.R. 509 at 511 and Director of Public Prosecutions v. WJW [2000] VSCA 170; (2000) 115 A.Crim.R. 217 at [15].

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Judgment (85 paragraphs)