The offender pleaded guilty to an offence of conspiracy to commit a robbery while armed with a dangerous weapon, which occurred on 3 April 2018. The offence is a common law offence and the substantive offence is to be found in s.97(2) of Crimes Act 1900. The maximum penalty is therefore at large and there is no prescribed standard non- parole period.
The offender was arrested on 4 April 2018 together with three co-offenders, namely, Craig Raymond Francis (the offender's father), Dale Donnelly and Dean Schumertl. The offender has been in custody since his arrest on 4 April 2018.
[2]
The Sentence Hearing
The sentence hearing took place on 4 February 2019. The Crown Sentence Summary became Exhibit A, it included an Agreed Statement of Facts. That document comprised 16 pages and outlined much of the evidence the Crown relied on by way of recorded conversations between the offender, his co-offenders and an undercover police operative ("UCO").
The Agreed Facts may be summarised as follows: The offender's father, Craig Francis, had for some years conducted cash-in-transit services for various licenced premises in the Forster/Tuncurry area, collecting cash from those premises and conveying it to the bank. That business had ceased in 2013. On 28 February 2018 the UCO had met with the offender and had driven around Forster. The offender pointed out a location where a cash-in-transit vehicle collected cash from and told the UCO about the route taken by the vehicle around clubs in the Forster-Tuncurry area. In March 2018 Police began monitoring the movements and activities of the offender and his father by way of a surveillance device and telephone intercepts, both authorised by warrants. On 18 March 2018 the offender met the UCO at a local tavern and told him that he and others were planning a robbery after the Easter public holidays. The UCO took the offender outside the premises to look in his car, showing the offender firearms and telling him, "I don't fuck around".
The offender told the UCO that his father had previously owned the cash-in-transit company for over 25 years but had lost everything in 2013. He told the UCO that he knew the routes and the time taken and that the guards wore uniforms but not firearms. Given there were no collections over the Easter long weekend, he expected there to be between $200,000 and $250,000 in cash.
The offender outlined the plan for the armed robbery to the UCO. They were to use a car and also a motorbike. That involved riding up to the back of the vehicle when the guard opened the boot, pulling a firearm on him, getting him on the ground and taking his phone. He also told the UCO that his father would probably want a cut of the proceeds. He had already told his father how much they had expected to gain from the robbery.
The UCO told the offender that he would organise a motel room so that he could meet the rest of the crew. The offender provided him with a mobile phone number and asked him about the firearms. The UCO told him that new firearms were used for each job so they could not be traced.
On 28 March 2018 the UCO met the offender and co-offender, Dale Donnelly, at a motel in Forster. The conversations were recorded during which the offender ran through the plans for the armed robbery. At a time when the UCO had left the motel room, the offender described his father to Dale Donnelly as a "silent partner". The offender also drew a mud map of the RSL Club at Forster where the robbery was to take place. After outlining his plan, the offender informed the UCO that his father suggested that a hoax call be placed to Police shortly before the offence so that police resources were diverted away from Forster, and that his father had agreed to make the call.
Further conversation covered the plans for the armed robbery including a discussion as to what clothing and face coverings to wear, the type of getaway car required, the plan to take the cash immediately out of town and the firearms to be utilised.
During that afternoon the three men left the motel room and got into the UCO's car. They drove around Forster and the offender showed the others the route to be taken. They drove to Club Forster where he pointed out the location of CCTV cameras and where the club managers and staff parked their vehicles. They drove around discussing getaway routes and where to torch the getaway vehicle.
The three men agreed to meet on Monday 2 April 2018 to do a dry run before committing the robbery the following day. The co-offender Donnelly agreed to purchase clothing and masks for all of them. He was subject to daily police reporting at the time, and it was decided that he would report early that morning prior to committing the offence.
At 4.50 pm that afternoon the UCO and offender met with the co-offender Craig Francis near the Nabiac Hotel. Craig Francis provided detailed information about the cash-in-transit operations in the Forster area and warned that the club may do an ATM drop on the Sunday over the long weekend. Craig Francis agreed to make the hoax phone call diverting police away from the scene, saying that he would call police and say that he had seen a group of blokes with balaclavas on.
On Saturday 31 March 2018 the offender and co-offender Donnelly exchanged text messages in which Donnelly told the offender that he was getting the dress gear the next day.
On Sunday 1 April 2018 the offender and UCO exchanged text messages and arranged to meet the following day.
On 2 April 2018 the offender and UCO exchanged text messages and agreed to meet in person in Forster later that day. At 6.30 pm they met at a carpark near Forster Beach. They discussed surveillance carried out by the offender, that Donnelly had purchased clothes and balaclavas had been arranged and that Craig Francis was ready to make the hoax phone call. They then conducted a dry run of the robbery. They drove into the carpark at Club Forster and discussed how the robbery was to unfold. The offender then directed the UCO through a number of back streets to plan an escape route. During the evening the co-offender Donnelly met the offender and told him that the clothes he had procured had been left in his brother's car, which was on its way to Sydney. The offender then informed the UCO of that by text message. At 7.56 pm an SMS exchange occurred between the offender and his father as to the hoax call to be made at 9 am the following day.
On Tuesday 3 April 2018 at 5.39 am the co-offender Donnelly sent the offender a message, following which he played no further part in the furtherance of the conspiracy. At 7.35 am the UCO drove to the offender's unit and had a conversation in which the offender informed the UCO that Donnelly couldn't make it. At that point the co-offender Schumertl walked up to the unit and asked where the men were going. The offender had a conversation with him and shortly thereafter the three of them left in the UCO's vehicle. A further conversation was recorded in which Schumertl agreed to drive the getaway cars. The conversation then detailed where the vehicle should be parked and everyone's role in the robbery. They then returned to the offender's unit where he obtained some dark pants, a shirt and gloves. The three men then drove to a motel in Tuncurry. A phone call made by the offender to his father was then recorded in which they agreed the father would make the hoax phone call at 9 am. They then agreed to meet at Bulahdelah after the robbery. It was agreed that the offender's father would send a message reading "Yes" once the hoax phone call had been placed.
A conversation was then recorded between the UCO and the offender about splitting the proceeds of the robbery. The offender suggested his father be given 20% of the proceeds and they would keep the rest.
The offender then put on a pair of long pants and a further conversation was recorded in which the UCO gave the co-offender Schumertl instructions about the getaway vehicle.
At 9.04 am the co-offender Craig Francis sent a text message which read "Yes". The offender indicated the content of that text message to the UCO and the UCO then made a phone call. He told the others that an accomplice was waiting around the corner with a white van, and left the motel room telling the offender and co-offender that he was going to get the weapons.
The co-offender Craig Francis never made the hoax phone call to the police. At 9.10 am, immediately after the UCO had left the room, Police entered the motel room and arrested the offender and co-offender Schumertl.
The offender participated in an electronically recorded interview. He confirmed his participation in the meetings and conversations with the UCO, however he told police he was a reluctant participant but that the UCO kept pushing him to go ahead with it.
Exhibit A contained the criminal antecedents of the offender. They included the following :-
2003 unlicenced driver - fined $600.00
2004 supply prohibited drug - 12 months imprisonment suspended pursuant to s.12
Failed to appear in accordance with bail undertaking - fined.
2005 break and enter with intent to steal - periodic detention for 12 months with NPP of 9 months
(Two offences) 2006 common assault - fined
Assault occasioning actual bodily harm - fined
2007 destroy or damage property - fined
2008 drive with mid range PCA - fined and disqualification 6 months.
Never licenced - fined
2009 break and enter house - imprisonment 20 months with NPP of 8 months, on appeal the head sentence was reduced to 16 months however NPP of 8 months confirmed.
2010 destroy or damage property - bond to be of good behaviour for three years and fined.
2016 possess prohibited drug (4 charges) - imprisonment one month.
2017 police pursuit not stop drive recklessly - imprisonment 12 months with NPP of 7 months.
Drive motor vehicle during disqualification period - Imprisonment 12 months with NPP 7 months, on appeal NPP reduced to 6 months.
The offender's criminal history also included numerous other driving offences including an offence of drive motor vehicle during disqualification period which he was sentenced to imprisonment for 4 months in 2015.
Exhibit B was a Sentencing Assessment Report under the hand of Ms L Newton dated 25 January 2019. That report set out the offender's family and employment history. His employment had ceased in 2016 when he was seriously injured in a motor vehicle accident. He suffered a head injury and consequently periodic seizures.
The author noted that the majority of his previous offences were related to his past alcohol and ongoing drug issues. Whilst on remand for the current offence the offender had incurred 10 misconduct charges relating to drug use and two internal charges unrelated to such use.
Under the heading "Attitudes" the offender attributed his offending behaviour to his ongoing illicit substance abuse and associated chaotic lifestyle. The offender stated that he was "continually pressured" to be involved and claimed he was a reluctant participant in the index offence.
The reporter set out the substance abuse history of the offender. He commenced using cannabis at 16 years and experimented with alcohol, cocaine and methylamphetamines in his early to mid twenties. The death of his paternal grandfather was a catalyst for his heavy ice use over the past 10 years. He sustained serious head injuries in the motor vehicle accident in 2016 which contributed to his use of illicit substances at the relevant time. He was using ice three times per day and had not slept for seven days prior to his arrest. The offender stated his motivation for the offence was a promise of "a kilo of ice" by his co-offender and not for financial gain. He denied being a violent person and did not own or have access to firearms.
The offender had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) at 6 years of age and took prescription medication until he was 16 years. He had been prescribed anti depressant medication whilst on remand.
The author of the report noted that the offender acknowledged his offending behaviour as directly related to ongoing illicit substance use however he failed to demonstrate insight into the impact of his offending behaviour on the victims, the community or upon himself. He claimed there was never going to be victims as "there was never going to be a robbery". The author noted the offender had expressed remorse and concern for the impact his actions have had on his family, particularly his father and friends. He was willing to undergo an assessment for residential rehabilitation.
The author noted that the offender's previous response to supervision was deemed poor and that he was assessed as a medium/high risk of reoffending. He was assessed as unsuitable to undertake community service work.
[3]
The Offender's Evidence
The offender tendered a report of Mr John Nolan, Forensic/Clinical Psychologist dated 22 December 2018. Mr Nolan set out the family background of the offender who was raised in Forster New South Wales. At age 16 he found his real mother had left his father when he was two years of age and his siblings thus became step-siblings, as did his mother. He was considerably upset having been raised in a Catholic family. The offender completed the Year 10 School Certificate and thereafter gained a trade qualification in boilermaking through TAFE. He worked for a time as a carpet layer before returning to Forster where he worked for six years as a scaffolder. After working on a fishing boat out of Cairns for some time, he returned to his work as a scaffolder in Forster.
The offender reported a childhood diagnosis of ADHD and being prescribed dexamphetamine. He suffered a closed head injury in a motor vehicle accident in January 2015, however the author opined that his brain injury may have largely resolved.
The offender gave a history of substance abuse, having commenced smoking cannabis from around age 16. His drug use had escalated following the motor vehicle accident in January 2015. Upon assessment he had high levels of dependence on amphetamines.
In respect of the offending behaviour, the offender blamed himself for being led into a fantasy of becoming a future armed robber. He contended that he was constantly badgered by the UCO.
The offender also expressed remorse, in particular for his father. He was looking forward to being on parole because he felt he needed help to plan and construct his life in the community. The author made a diagnosis of substance use disorder and set out treatment goals for a period of 12 months. He opined that the offender had the capacity to reduce his risk of reoffending, that he had insight into the pathway of his offending, which included drug use, that he appeared to have genuine remorse, that he had a good working background and saw himself as returning to work upon his return to the community.
Exhibit 2 is a handwritten letter from the offender to the Court. It set out his family background, schooling and a number of life events which affected him, including the death of his grandfather, and the breakup of a relationship. This led him to dabbling in drugs and that escalated into an addiction to ice. Following a period in custody for drug offences he returned to Forster and began work as a scaffolder, which led him to starting his own business doing scaffolding work. Subsequently he was gaoled twice for driving and traffic offences. After his motor vehicle accident in 2015 he suffered from regular seizures which were slowly fading away. He was suffering constant pain and made poor decisions, including self medication with ice, at first smoking it then injecting it. His life spiralled out of control. He was ashamed, disgusted and embarrassed by dragging his father into the subject offence. He acknowledged that he needed professional help and rehabilitation.
The offender, who was born in 1984, gave no evidence at the sentence hearing.
[4]
The Offender's Submissions
Counsel for the offender submitted that the objective seriousness of the offending for the subject offence was below mid range for the offence of conspiracy to commit a robbery while armed with a dangerous weapon. It was submitted that the planning was limited and amounted to a lot of talk and posturing, and that the offender's participation was "laughable". It was submitted that the offender was not the "leading light" for the offending and if it were not for the UCO, the conspiracy would have fallen apart.
It was submitted that no active planning took place, for example there was no organising of cars, the offender had no guns and no access to firearms. He had been taken by the UCO to look at weapons in the UCO's car and the co-offender Donnelly had undertaken to organise the co-offenders' clothes. Counsel relied upon the Court of Criminal Appeal's judgment in Couloumbis v R [2012] NSWCCA 264 at [38] to describe the cooperation, by analogy, as a "shemozzle". There was no evidence of detailed or sophisticated planning concerning the offence.
Counsel submitted that the guideline judgment in R v Henry (1998) 46 NSWLR 346 was applicable because the substantive offence was armed robbery pursuant to s.97(2). It was submitted that the offender was a reluctant participant and whilst no entrapment was suggested, it was submitted that if it had not been for the UCO the operation would have "fallen over".
It was submitted that the following mitigating factors applied pursuant to s.21A(3), namely there was no emotional harm or loss or damage caused ((3)(a)); the offender had good prospects of rehabilitation notwithstanding his drug use; he had expressed genuine remorse to Mr Nolan and in his letter to the court; and he had entered a plea of guilty at the earliest opportunity and was therefore entitled to a 25% utilitarian discount on sentence ((3)(k)).
It was acknowledged that the following aggravating factors applied namely the offending may have involved the threatened use of violence however it was submitted that that would have been minimal. It was submitted that the threatened use of a weapon was not an aggravating factor as it was an element in the offence pursuant to s.97(2) of the Crimes Act. Further, his criminal history did not entitle him to leniency, but was not an aggravating factor. Further it was submitted that being "in company" was an element of the offence of conspiracy and therefore was not an aggravating factor. Similarly financial gain was also an element of the offence.
Counsel submitted that the s.5 threshold had been crossed and that general and specific deterrence should be taken into account, being the offender's extensive drug use should be taken into account as a contributing factor to his offending. It was further submitted that the following subjective features should be taken into account; namely, that the offender had a normal but strict catholic upbringing until aged 16. Further the motor vehicle accident in 2015 had caused him significant injuries including brain injury for which he was treated with opiates which led to an escalation of his drug abuse.
In terms of the Henry guideline, it was submitted that here there was a limited degree of planning and that no money was taken. It was conceded that the victims would have been vulnerable however his early plea was a distinguishing feature. Having regard to all of the factors set out in the judgment of Spigleman CJ, a head sentence of less than four years was appropriate here, less 25% discount on penalty.
[5]
The Crown's Submissions
The Crown submitted that the maximum penalty being at large for the conspiracy offence was a guidepost in the sentencing process. A further guidepost was that the offence pursuant to s.97(2) carried a maximum penalty of 25 years and no standard non-parole period. The Crown submitted that the appropriate approach was that approved by the Court of Criminal Appeal in Tyler v R; R v Chalmers [2007] NSWCCA 247 and Petterson v R [2013] NSWCCA 20.
Further, in Sabbis v R [1995] HCA 29 the High Court had held that with respect to a conspiracy to import and supply heroin, once the relevant agreement had been established, the particular acts that follow upon that agreement are relevant and can be taken into account in assessing the objective seriousness. Further the Crown relied on Harrison J's judgment in Couloumbis v R, supra at [26] where his Honour said :-
"It is a mistake to confuse the fact that the conspiracy was never acted upon with the idea that it was for that reason somehow less serious or not serious at all. The offence of conspiring to commit aggravated armed robbery is a manifestly serious criminal offence and a description of it as objectively very serious does neither injustice to the expression in the context in this case nor to the applicant in this appeal."
The Crown submitted that in assessing the objective seriousness the Court had to take into account all of the agreed facts set out above.
In terms of aggravating factors, the Crown submitted that it was an aggravating factor that the offence was committed in company, relying on Auimatagi v R [2011] NSWCCA 248. It is a further aggravating factor that the offence was committed for financial gain which was not an element of the offence, relying on Couloumbis at [28] to [33].
In assessing the role of the offender, it was submitted that he was not a "reluctant participant". He had first outlined his plans for the offence on 28 February and at his meeting with the UCO on 18 March he had researched the route of the relevant vehicle and the timing of the deliveries of cash. It was his idea of committing the offence after the long weekend to maximise the return. It was submitted that on 28 March he had introduced the co-offender Donnelly, he had supported the use of weapons and had played an active role in the planning, for example, in his suggestions as to how they would get away undetected and what they would do with the cash. He also showed the UCO a route in a trial run of the various locations on the same day he introduced the UCO to his father.
On 31 March the offender made enquiries with the co-offender Donnelly about the clothing he was to acquire and on 2 April he had informed the UCO of the cash that had been collected during the weekend.
The Crown submitted whilst there was some reluctance shown by the offender, he did nothing to extract himself from the operation and continued to participate in it, including his telephone contact with his father, his involvement in the dry run with the UCO and of the carpark and getaway route.
On 3 April 2017 the offender was also involved in including Schumertl and ensuring that his father would make the hoax phone call. He had put on the clothing and been prepared to perpetrate the offence and had an expectation of financial reward which he discussed with the co-offenders. It was submitted that he was an active participant throughout the operation and that the offending was objectively serious and comfortably within the mid range for such offence.
The Crown agreed that the offender was entitled to a discount of 25% for his early plea of guilty. His significant criminal history however disentitled him to any leniency in sentencing and he was an appropriate vehicle for both general and specific deterrence.
It was submitted by the Crown that the offender's drug use could not be a mitigating factor pursuant to s.21A (s.5AA). Further there was no evidence to form a basis of a finding that the offender had good prospects of rehabilitation. The Sentencing Assessment Report stated he had poor insight into his offending and his past response to supervision had been poor. In any event, caution should be exercised by the Court in giving weight to any subjective material given to third parties and not supported by sworn evidence.
[6]
Determination
"The purposes for which a court may impose a sentence on an offender are as follows:
"S.3A of the CSPA sets out the purposes of sentencing as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(g) to recognise the harm done to the victim of the crime and the community".
In assessing the objective seriousness of the offending here, I do not accept the submission made on behalf of the offender that he was a reluctant participant in the operation. Nor do I accept, that without the involvement of the UCO, the operation would have "fallen over" and been far less serious. Rather, the offender embraced the prospect of using weapons to be supplied by the UCO to further his plan to rob the cash-in-transit vehicle. He had researched the routes and timing of the vehicle and nominated the time for the offence to take place, namely the first business day after a long weekend, so as to maximise the amount of money involved. He had also delegated to the co-offender Donnelly to obtain clothing for them to wear, and had discussed the operation with his father and arranged for him to make the hoax phone call which was never made. He had introduced the UCO to his father and had further meetings with him in which the proposed armed robbery was discussed, including a dry run the day before.
The essential feature of the offence of conspiracy is the agreement to participate in an organised criminal activity. In Pettersen v R [2013] NSWCCA 20 Fullerton J (with whom Beasley JA and Beech-Jones J agreed) set out at [41]:
"As Simpson J observed in Tyler v R [2007] NSWCCA 247 at [83] is the organisational nature of conspiracy and the interrelationship between the various participants, rather than an identification of the role of the particular conspirator by reference solely to the physical acts performed by that person, that is of primary importance when sentencing for a conspiracy."
Fullerton J went on to state as there was no standard non-parole period applicable to the conspiracy charge, there was no obligation to make an assessment of where within a range of objective seriousness the offence was located (see [44]).
The offending here was clearly very serious. The organisational nature of the operation was reflected in the amount of planning carried out by the offender as outlined above. I reject the submission made on behalf of the offender that the whole operation here amounted to a "shemozzle" analogous to that described in Couloumbis. Rather, the planning was detailed in terms of the staking out of the route to be taken by the cash-in-transit vehicle, the place where the armed robbery was to take place, the subterfuge to be carried out by the offender's father to distract police attention, the procurement of clothing and the wearing of balaclavas, the offender's intention to procure firearms to carry out the robbery and his stated intention to use a firearm against unarmed guards and the planning of the escape route. If there was a need to characterise the objective seriousness of the offender within a range for an offence of conspiracy to commit a robbery whilst armed with a dangerous weapon, I would accept the Crown's submission that this operation fell comfortably within the mid range of objective seriousness for such an offence. It was clearly very serious offending, and as stated by Harrison J in Couloumbis, the fact that the conspiracy was never acted upon does not make it any less serious.
I accept that aggravating factors in the offending were that the offender was "in company" at the time of the offence, although I am careful not to double count this and I am further satisfied that he was motivated by financial gain, which is not an element of the offence. As stated above, I note that the maximum penalty is at large for the conspiracy offence, and that s.97(2) of the Crimes Act carries a maximum penalty of 25 years imprisonment and no standard non-parole period. It is appropriate to have regard to that maximum penalty as a guidepost in the sentencing process see Auimatagi, supra at [4].
I further accept that it is a mitigating factor pursuant to s.21A(3)(a) that there was no emotional harm or loss or damage caused by the offending.
General deterrence is important here in that a clear message must be sent to like minded members of the community that there are severe penalties for conspiring to commit armed robberies and that the courts will impose lengthy custodial sentences in appropriate cases. Specific deterrence is also important here given the offender's criminal antecedents which disentitle him to any leniency, and which mean that he must understand that his continuing disobedience of the law will result in lengthy custodial sentences. There is no evidence to suggest that the offender's mental health issues, or brain injuries suffered in the motor vehicle accident in 2015, had a causal connection to his offending here. Rather, it was borne from his addiction to ice.
I accept that the offender is entitled to a 25% utilitarian discount on sentence by reason of his early plea of guilty, which also indicates some remorse for his offending. I place little weight on his expressions of remorse to Mr Nolan, or his letter to the court, given that both were unsupported by sworn evidence.
There are significant distinctions here from a typical case referred to in the guideline judgment of R v Henry. For example here, the offender was much older than the offender in Henry and had a significant criminal history and there was no actual violence involved but there was the threat of such violence. Further, the guideline judgment involved a 10% utilitarian discount on sentence in the face of a strong Crown case. Here the discount is 25%.
I am not satisfied the offender has good prospects of rehabilitation. I do however find special circumstances based on the offender's need for drug and alcohol rehabilitation, and his need for supervision to assist him with accommodation and entering the workforce upon his return to the community. I therefore intend to vary the ratio between head sentence and non-parole period pursuant to s.44(2) of the CSPA.
I am satisfied that the s.5 threshold has been crossed and no other penalty other than a full time custodial sentence is warranted here. I intend to sentence the offender to a head sentence of 5 years imprisonment, with a non-parole period of 3 years imprisonment to commence on 4 April 2018.
[7]
Orders
I therefore order as follows:
1. You are convicted of the offence of conspiracy to commit a robbery while armed with a dangerous weapon pursuant to the common law and s.97(2) of the Crimes Act 1900.
2. I sentence you to a non-parole period of 3 years to commence on 4 April 2018 and to terminate on 3 April 2021.
3. The balance of term of 2 years will commence on 4 April 2021 and expire on 3 April 2023.
You must understand that your release to parole will not be automatic. The Parole Board will meet to determine your release date, and the conditions of your release, which will include where you are to live, conditions of your supervision by Community Corrections, that you are not to reoffend. If you breach those conditions you will be returned to custody.
[8]
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Decision last updated: 20 February 2019