R v Rich [2009] VSC 515

Supreme Court of Victoria|2009-11-13|Before: LASRY J

CRIMINAL LAW - Sentence - Murder - Armed robbery - Security guard fatally shot during armed robbery - Victim compliant with offenders' demands - Previous criminal history - Conduct of offender during trial - Prospects of rehabilitation - Serious violent offender per clause 3 Schedule 1 of the Sentencing Act 1991 - Whether to fix a non-parole period - Age of offender a relevant consideration.

2 You have admitted some previous convictions and others, which you did not admit, were proved to my satisfaction by the production of appropriate certificates in relation to particular charges which had been brought against you and dealt with in various courts. I will return to summarise those matters and comment on your criminal history shortly.

3 These offences of which you have been found guilty by the jury were committed in the following briefly summarised circumstances. Since 1990, you had maintained a longstanding friendship with Leonard Ryan, a man younger than you, and it appears that you met him in prison. In October 2004 you were released on parole in relation to sentences imposed on you in the County Court subsequently amended by the Court of Appeal for, among other things, two armed robberies which you had committed in 1991. Once you were released your contact with Ryan was constant. Part of your discussions with Ryan concerned a proposal to take over a company called Precision Design Australia (PDA) and the need for funds to achieve that. Ryan, at least, believed that the reason for the armed robbery on 8 March 2005 was to obtain funds that purpose.

4 Through Ryan, an associate of his, Sean Hogan, became involved in the planning of the armed robbery. You, however, carefully maintained a distance from him and you and Hogan never met except on the day of the robbery when items to be used for the armed robbery were handed to him.

5 The armed robbery in which you participated was the product of a suggestion by Leonard Ryan. Ryan, it appeared, had familiarity with the shopping centre at North Blackburn and recognised it as a potentially attractive target for an armed robbery. It was always contemplated that the armed robbery would be in connection with the delivery of money by an armoured van to a bank in that shopping centre which was in fact the Commonwealth Bank. Ryan obtained agreement from you and from Hogan to participate in the armed robbery though you insisted that your identity not be disclosed to Hogan.

6 There was some suggestion that the robbery would occur prior to 8 March 2005 and, according to the evidence of Ryan before the jury, it was arranged for 1 March 2005. Ryan prepared himself to participate in the armed robbery on that day as he assumed you were also doing. Hogan likewise, who was to be the lookout and to give signals when the armed guards were carrying the cash into the bank, had also prepared himself for participation and had actually gone to the area. Ryan's evidence was that he was to meet you at an area in West Melbourne from where you would proceed to North Blackburn. Ryan said that on that day you failed to keep the appointment and later in the day, during the course of a discussion when Ryan went to find out why you did not keep the meeting as arranged, he handed you a firearm which was a 9 mm handgun in the vicinity of your office in the centre of Melbourne.

7 Ultimately, the evidence suggests that the arrangement for 1 March was rolled over to 8 March and on that day you and Ryan met and proceeded to the scene. With a view to the successful execution of the armed robbery a Nissan Maxima motor vehicle had been hired which was generally described as the secondary getaway car. Also a van had been stolen by Ryan and positioned in the Box Hill area so that it could also be used in the commission of the offence. According to Ryan, you and Ryan drove from a railway station in Richmond or Burnley to a predetermined location in the hired Nissan Maxima. You then got out of that car and got into a stolen van and drove to the North Blackburn Shopping Centre. On arrival at the shopping centre there was a brief contact between Ryan and Hogan and, it would appear, some contact between Hogan and yourself although only fleeting.

8 Ryan and Hogan were in possession of mobile telephones which were specifically purchased in false names for the purpose of enabling contact between Hogan as the lookout and Ryan and yourself as you waited to enter the premises to confront the guards who were proposed to be robbed.

9 You and Ryan had gone to the shopping centre with equipment appropriate for an armed robbery. That included fluorescent tops, balaclavas and gloves. Ryan was in possession of a .38 revolver which he said he had not obtained any ammunition for. You were in possession of a 9mm pistol that fired the round that caused Mr Kastenberger's death.

10 On the way to the North Blackburn shopping centre a piece of wood was obtained which had been specifically cut in order to block a door and to assist your exit after the armed robbery. It was used for that purpose and was later discovered by two students from Blackburn High School across the road. At the shopping centre you and Ryan sat in the stolen van for about 15 or so minutes until a call was received from Sean Hogan saying that the armoured van had arrived. You then got out of the vehicle and you and Ryan made your way through a door into the shopping centre, putting on balaclavas and hats. In the mean time Mr Crowe and Mr Kastenberger were approaching the Commonwealth Bank. Mr Kastenberger was first into the shopping centre and he was carrying the bag of money.

11 Upon a further signal from Hogan to go, a door behind which you were both waiting swung open and then a male person was immediately confronted, a Mr Laria, and was told to "Get on the fucking ground and stay there". He complied. You then moved into the shopping centre opposite the Commonwealth Bank and engaged the guards. Mr Crowe had not yet turned the corner and the first man confronted was Mr Kastenberger. According to the evidence you were yelling, "Get on the ground". The idea was to intercept the guards before they reached the inside of the bank. The first guard, who was Mr Kastenberger, had the bag containing $162,000 in cash. That bag was thrown by him and landed around the right-hand side of the Go-Lo store. Ryan said he went to the bag and grabbed it. You confronted Mr Kastenberger and in the course of doing so struck him to the head with the firearm you were carrying and then fired a shot into his right shoulder which ultimately caused his death.

12 There were a number of witnesses to this incident as it occurred in a busy shopping centre in the middle of a weekday. Of those who saw the offence being committed, a number of them described what you did. For example, the witness Colin Duniam gave evidence that he saw you run into the security guard who must have been Mr Kastenberger with your body and push him against the wall. He said that you then spun around and shot the guard. Maria Faulisi said she saw you lift your arm with the gun and noticed at that point the security guard was walking very slowly in front of the bank and she then heard a sound like a pop gun and saw that the guard had been shot. Genevieve Werninghaus gave evidence that you leant over Mr Kastenberger and fired a shot and just prior to that occurring she had noticed that you had what she described as a pistol in your hand. She said it was in your right hand and you were aiming it at the man on the ground.

13 Bethany Simms was also a witness to the incident and she described the man in the orange, whom the jury clearly found was you, with your arm extended holding a gun. She saw Mr Kastenberger fall to his side. Maxine Barry also saw the man whom the jury has found was you pointing a gun at a man who seemed to be falling and when she heard a loud bang she realised the man who was falling had been shot. For these witnesses what you did was terrifying with a man shot to death in their presence.

14 I am satisfied that the sequence of events in which you participated involved the Chubb security guards surrendering a bag containing $162,000 which ultimately you and Ryan removed very shortly after the confrontation began. I am equally satisfied that you deliberately and cold bloodedly shot Mr Kastenberger consistent with the description of the witnesses. The unknown factor is why you did that. There is no evidence on which I can conclude that issue but the jury's verdict represents a verdict that you deliberately fired a shot into Mr Kastenberger with the necessary intent. Both guards were armed but neither made any attempt to use their firearm to defend themselves or the money being carried.

15 After the incident was complete, you and Ryan left the premises with the $162,000 and proceeded via two getaway cars to a location where ultimately the question as to how the money would be dealt with was discussed between you and Ryan. You ultimately took all but $20,000 which was intended to be given to Sean Hogan for his smaller role in the armed robbery.

16 For the purpose of sentencing you I am prepared to accept that though you went to the North Blackburn shopping centre with a loaded firearm you did not plan to kill either of the security guards or anyone else. However, I am satisfied that you took the loaded firearm with you on the basis that you would use it to make good your escape if you had to. You obviously felt that need had arisen and had no hesitation is using the gun to kill Mr Kastenberger.

17 On any view, you have an appalling history. It began in 1971 when you were aged 19 years and although they were motor vehicle offences they involved dishonesty. Over the ensuing years you were convicted of offences which included handling stolen goods, theft, numerous counts of obtaining property by deception in 1981, false pretences, forgery. In total, your criminal history consists of 80 charges arising from 15 court appearances which were either admitted by you or were proved to my satisfaction by the Crown.

18 On 15 March 2000 in the County Court at Melbourne you were convicted of armed robbery and the result of the sentence which was imposed on you was that a new aggregate sentence of 15 years' imprisonment with a minimum term of 12 years and six months' imprisonment was fixed. In 1995 and again in 2000 you were convicted of counts of armed robbery being two offences committed in 1991. One offence concerned an armed robbery on an Armaguard van and the other was on a branch of the National Australia Bank. Arising out of those matters were further convictions for threatening to kill and two counts of contempt. Those counts of contempt involved threats by you addressed to a trial judge and a Crown prosecutor. As your counsel properly conceded, protection of the community and general deterrence would have to figure prominently in the sentence I impose. He also referred to specific deterrence but I have considerable doubt that you are capable of being specifically deterred from committing criminal offences.

19 You were paroled on 3 October 2004, having been in custody since 2 December 1991. That parole was due to expire on 19 September 2006. To date no order has been made by the Parole Board.

20 Two victim impact statements have been provided on behalf of Mrs Robyn Kastenberger, the wife of the deceased Erwin Kastenberger. One dealt with an earlier phase of these proceedings. Similar documents have also been provided by Mark Kastenberger, the son of the deceased; Josef Kastenberger, the brother of the deceased; Rita Kastenberger, the wife of Josef Kastenberger; Tony Laria, a witness to the armed robbery and murder; and Robert Crowe, who was working with the deceased man at the time he was shot and killed. I have taken these statements into account in the sentence that I will impose.

21 Each of these victim impact statements highlights the phenomenal tragedy which was the murder of Erwin Kastenberger. Not only was his life extinguished but the lives of a number of people, including those close to him, have been forever affected. Each member of the family has described the extreme emotional and psychological effects of this tragedy. These statements also demonstrate that the time between 8 March 2005 and the present has been very difficult and the continuing legal process which has occurred during that time has, itself, been extremely difficult. Members of Mr Kastenberger's family, particularly including his wife, have been present in a quiet and dignified manner throughout the entirety of the proceedings. They are obviously a close family and were close to Erwin Kastenberger. Nothing that the Court can say in these proceedings can possibly assuage the loss and grief that this family obviously continue to feel.

22 Mr Laria, who was caught up in your actions, has clearly been saddled with the continuing traumatic effects of what occurred when you confronted him. Not only was he confronted by you and Leonard Ryan but he also was required on several occasions to give evidence - during both the committal and this trial. Whilst he was at the Magistrates' Court he witnessed one of your abusive outbursts directed at the presiding Magistrate.

23 Mr Crowe witnessed the event. He went to the aid of Erwin Kastenberger and tragically was a witness to his death. He continues to suffer the effects and has been under the treatment of professionals for what I assume is post traumatic stress disorder. His victim impact statement is a stark reminder of the immediate of devastating effects of a crime such as yours.

24 On your behalf, Mr Desmond said that you dispute the verdict and maintain your innocence. There is, therefore, no question of any element of remorse. Mr Desmond went on to deal with the fixing of a minimum term and urged me to fix such a term. He further submitted that the evidence does not disclose that you planned to go to the North Blackburn shopping centre with the intention of killing a security guard. That is clearly correct. However you went there armed with a loaded firearm which you were prepared to use if you thought it was necessary, and, for whatever reason you decided that it was necessary. Mr Kastenberger was, as Mr Tinney submitted, totally compliant with the demands made of him by you and did nothing to provoke the shooting.

25 Mr Desmond also submitted on your behalf that it was important to identify what this murder was not. It was not, he said, a gangland killing or a contract execution. I did not find that particularly helpful. What you did was kill Mr Kastenberger consciously and deliberately in circumstances where the money which was the target of your plan had been surrendered. It was a senseless and callous killing.

26 You are 57 years of age and seem to have spent a significant part of your adult life committing criminal offences and serving sentences. At the time of these offences you were living at Maddox Road, Newport with Sandra Blackney who has been referred to as your wife and I assume she is. You seem to have suffered from some medical ailments and from time to time during the trial you have apparently needed to obtain medical attention. Mr Desmond told me that you suffered from a cardiac problem but no evidence was put forward in relation to that. Your instructions to your counsel were that I was to be told nothing else about you. So be it.

27 Perhaps unwisely, your counsel in the course of his plea suggested that given your age with the passing of time you may be rehabilitated if only because as you became older you would have a lesser capacity to commit violent offences. On the other hand, the Crown submitted that you had no prospects whatever of rehabilitation and submitted that an illustration of the force of their argument is represented by your conduct during this trial. I agree with that submission. I have read through the unreported judgment of the Court of Appeal in The Queen v Hugo Alistair Rich dated 17 December 1997 (proceeding number 265 of 1995). I have read, as their Honours urged be done, the summary of proceedings attached to that judgment. It carries a very familiar tone.

28 In this case you have, as was submitted, treated the Court with contempt as you did in that case. Apart from your abusive remarks directed to myself and to the Crown you at least endeavoured to manipulate the process by threatening to dismiss your counsel and actually doing so from time to time apparently in the belief that I would be in some way intimidated by having to deal with you unrepresented. The prospect held no particular concern for me. But, by your conduct throughout the course of this case you have demonstrated that in the last 15 or so years you have had no interest in rehabilitating yourself or altering your life in the cause of at least attempting a law-abiding existence. I regard you as irredeemable and reject your counsel's submission that there is any prospect of rehabilitation. Your advancing age may interfere with your ability to commit crime but I have no doubt that the challenge of that would be one that you would be content to meet if at all possible.

29 It is an understatement to say that general deterrence, specific deterrence and the protection of the community "figure prominently"[1]. These offences were committed by you within five months of your release on parole for armed robbery and your parole at that stage still had a further eighteen months until the expiry of the head sentence. Your actions demonstrate contempt for the law generally.

30 The Crown have submitted, and your counsel did not seek to argue to the contrary, that you fall to be sentenced to be sentenced as serious violent offender. Obviously murder is a serious violent offence and you have a prior conviction for making a threat to kill which is a qualifying offence pursuant to clause 3 of Schedule 1 of the Sentencing Act 1991.

31 Your counsel referred to the delay between your arrest and the completion of this trial. That is a delay of some four and half years. It is a significant delay. The delay was due, in part, to difficulties in you obtaining legal representation and pressing in every detail what you regarded as your entitlement to due process. You cannot and should not be penalised for pursuing legitimate remedies. However, whilst the delay is relevant in the sense that throughout that time you have had this matter, as it were, "hanging over your head", unlike other cases, that time does not appear to me to have resulted in the progress of any form of rehabilitation. As I have already said your behaviour during this trial does not suggest there is any prospect for your rehabilitation.

32 I declare that 1647 days, including today, is the period of pre-sentence detention. I direct that be recorded. For the murder of Mr Erwin Kastenberger, Count 1 on the presentment, you are convicted and sentenced to be imprisoned for life. For the offence of armed robbery, Count 2 on the presentment, you are sentenced to be imprisoned for twenty years. I declare that for the offence of murder you are sentenced as a serious violent offender and direct that be entered in the records of the Court pursuant to s 6F of the Sentencing Act 1991.

33 The question which then arises is whether a minimum term before eligibility to apply for release on parole should be fixed. There has been no remorse shown by you for what occurred. You maintain that you are innocent of these crimes. Your counsel has argued that the fixing of a life sentence without a minimum term is an extreme penalty should only be fixed in the most serious of cases and is exceptional. This is the most serious of cases. It was a killing for which there was neither logical explanation nor the slightest hint of justification. What distinguishes you from those cases where a minimum term has not been fixed is that usually in those cases there was more than one murder.

34 The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of a prisoner in favour of rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence[2]. In considering this issue, I clearly must have regard to your age. You are now 57 years your date of birth being 18 September 1952. A large proportion of your life has been wasted committing crime.

35 Mr Desmond has submitted that a reasonable non-parole period should be set which allows you some time out of custody before your death. To do otherwise he submits is to impose a crushing sentence. A "crushing" sentence connotes "the destruction of any reasonable expectation of a useful life after release". But whether the sentence is crushing cannot be determinative of what the appropriate sentence is given the crime and all of the relevant circumstances. The age of an offender is a relevant sentencing consideration. But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence. It would be inappropriate to approach the selection of a proper minimum term from the point of view that, because of your age, there was a need to ensure some measure of life after release[3]. However, I do consider that it is appropriate to fix a minimum term before eligibility for release on parole albeit a very substantial one.

36 I direct that you serve a minimum term of 30 years before being eligible for release on parole.

37 I have signed the disposal order sought by the Crown.

[1] Transcript of 26 August 2009 at page 30.

[2] See Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, at p 629.

[3] See the discussion of this issue in R v Cumberbatch [2004] VSCA 37 at para 12 & ff.

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