R v Tame Kohunui [2007] VSC 180

Supreme Court of Victoria|2007-05-08|Before: WHELAN J

CRIMINAL LAW - Sentence - Manslaughter (1 count) - Armed robberies (2 counts) - Plea of guilty to all offences - Evidence given against co-accused in second armed robbery and murder, refusal to co-operate in relation to first armed robbery - Prior Convictions - Remorse - Capacity for rehabilitation - 5 years imprisonment for first armed robbery, 4 years imprisonment for second armed robbery, 8 years imprisonment for manslaughter - 3 years of the sentence on the first armed robbery and 2 years on the second to be cumulative with manslaughter sentence - Total effective sentence after cumulation 13 years with a non-parole period of 9 years.

2 The maximum penalty on the offence of manslaughter is 20 years' imprisonment. The maximum penalty on the offence of armed robbery is 25 years' imprisonment.

3 On the original presentment there were seven accused. Three were charged with assisting offences. You and your brother, John, were charged with murder and two armed robberies. Mark Herbert was charged (with the you and your brother) with one count of armed robbery, and Wally White was charged (with you and your brother) with another count of armed robbery and with murder. Consequent upon guilty pleas by yourself, and by your brother, new separate presentments were filed in relation to Wally White and Mark Herbert.

4 All of the various charges relate to two armed robberies at a gaming venue named the Freccia Azzurra Club in Keysborough. The first occurred on 2 November 2004 and the second on 28 November 2004.

5 In the first armed robbery you and your brother attended the Club at approximately 11:22 pm with a third person, who the Crown alleges was Mark Herbert. The three of you were armed with large knives and a meat cleaver. There were no firearms on this occasion. Two female staff members were present but no patrons. Over $30,000 was stolen. The armed robbery was planned, but not meticulously so. You and your brother attended the club the day before to conduct a reconnaissance of the premises. You and your brother collected weapons from one Riki Tourangi on the night of the robbery.

6 The second armed robbery, at the same venue, took place on 28 November 2004. Again, a third person was with you. The Crown alleges that that person was Wally White. You and your brother also say that that person was Wally White. Wally White has denied any involvement in the robbery. This time, in addition to knives, a firearm was brought for use in the robbery. The Crown accepts, as I do for the purpose of this plea, that it was the third person who had obtained and who carried the firearm. It was a high powered rifle.

7 As a consequence of your first armed robbery the Club had engaged a security guard, Mr Jason Gully. According to the statement you have now made, and which you adopted in sworn evidence given on your plea, you did not know a security guard would be at the Club before the second armed robbery.

8 In the second armed robbery the three of you arrived at about 11:39 pm. This time there were a number of staff and patrons present. In the course of the robbery you were shot in the lower back by the security guard. The third person fired at the guard and killed him. The three of you left having taken in excess of $10,000, and you and your brother were apprehended some weeks later. In your record of interview you admitted your own involvement in the two armed robberies.

9 You and your brother, John, have undertaken to give evidence to the effect that the third person, who fired the shots which killed Jason Gully, was Wally White. The Crown accepts that neither of you carried or fired the rifle. The Crown has accepted a plea from each of you to manslaughter on the basis that the manslaughter is an unlawful and dangerous act manslaughter; the unlawful act being the act of taking the firearm to the robbery, and the danger being the risk a reasonable person would appreciate that serious injury could thereby result. I accept that that is the form of the manslaughter to which you have pleaded guilty.

10 You were born on 20 September 1979 and spent your early years in New Zealand. You grew up in an environment of domestic violence. You have two half sisters who are older than you and who still live in New Zealand. Your mother brought you and your older brother, John, to Australia when you were about 8 years old. You have had little or no contact with your father since then.

11 You attended school in New Zealand and in Australia. On your plea your counsel told me you were initially doing well at High School in Australia and that you were a talented sportsman, particularly at rugby. He told me that you were in the Victorian State Under 17 team and that your goal was a rugby league career.

12 In January 1994 whilst holidaying in New Zealand you were a passenger on a bicycle that was struck by a car. You were not wearing a helmet. You suffered head and other injuries and were taken to hospital. You were discharged in February 1994. A bundle of documents relevant to your treatment was tendered on your plea. Those documents indicate that the diagnosis at the time was "moderately severe head injury with bilateral parietal fractures". When you returned to Australia from New Zealand you had not made a complete recovery. Amongst other things, you were advised that you should not undertake any contact sport for one year. Your counsel told me that your injuries affected your motor skills and your verbal skills but, of greater significance, it effectively ended your rugby career. He said that you then felt you had "nothing" in your life.

13 You left school having completed Year 10. You initially had a job in a factory but you began associating with older boys and were drawn into an environment of drug abuse.

14 You are now 27 years of age. You have had very little employment since leaving school.

15 Your criminal history is a bad one. You have a number of prior convictions for possession of illegal drugs and one prior conviction for trafficking. Of greater significance in the present context, in 1998 you were convicted in the County Court of offences of aggravated burglary, armed robbery, and causing injury intentionally or recklessly for which you were sentenced to 21 months in a Youth Training Centre; and in 1999 you were convicted of attempted armed robbery for which you were sentenced to a term of imprisonment of three years six months with a non parole period of 27 months. Most recently, on 21 May 2004 you were sentenced in the County Court to a term of 438 days' imprisonment on a charge of handling stolen goods. Counsel for your brother told me that you and he had been charged with armed robbery as well as with handling stolen goods, that the two of you were acquitted of armed robbery but convicted of handling stolen goods, and that the sentence was the time that you had spent on remand awaiting trial. Your counsel told me on your plea that that explanation was consistent with what you had told him.

16 It is clear that you have a serious problem with the abuse of illegal drugs. On your plea a report of the clinical psychologist, Mr Bernard Healey, was tendered. I have read that report and taken its contents into account. Intellectual testing conducted by Mr Healey reveals "just below average capacity". Mr Healey says that in certain respects your mental capacities are reduced and observes that it is not possible to dismiss "the presence of subtle higher level cerebral impairment, particularly apparent in memory function, which may well be a legacy of the injuries he sustained in the accident at the age of 14". Mr Healey indicates that you experience self reproach and guilt about the conduct that resulted in the death of another person and that you are unhappy most of the time. Mr Healey records a history of heroin use and says you have twice been on a methadone program and relapsed.

17 Your counsel tendered a bundle of certificates and records of programs undertaken whilst in jail awaiting trial on these offences, and a bundle of notifications indicating negative results to random tests for drugs undertaken whilst in jail. In jail you have been given jobs only open to prisoners considered more trustworthy.

18 On your plea your counsel submitted that there were four matters that should be taken into account in mitigation. They were:

Your plea of guilty.
The remorse and desire for rehabilitation demonstrated by your plea and the other material to which I have referred. I accept in this context that in relation to your plea to the manslaughter charge, that plea came at the earliest reasonable opportunity, as was submitted by your counsel.
Your cooperation and undertaking to give evidence in the trial of Wally White. Your counsel submitted that in the absence of the evidence of you and your brother the case against Wally White is not strong. He submitted that circumstances such as these permit leniency which would otherwise be quite unjustified. In this context he also referred to the fact that as a result of the course you have taken you will be a "marked man" and will have to serve your term of imprisonment in protective custody.
Your personal background and, in particular, the accident which you suffered and the disabilities from which you continue to suffer as a result. He also referred to the fact that the injury you suffered in the second armed robbery will discourage any future involvement with firearms.

19 You gave evidence on your plea. The statement you have now made in which you describe Wally White's actions in the second robbery, and a written undertaking you have given to give evidence in his trial, were tendered. The statement expressly states that you do not want to implicate the third person in the first armed robbery, and your statement does not identify that person.

20 Counsel for the prosecution on your plea adopted submissions made by senior counsel for the prosecution on your brother's plea. He had emphasised the importance of the evidence you both are to give in the trial of Wally White. He had said that you have not cooperated in relation to the first armed robbery but that your statement concerning the second armed robbery and your undertaking to give evidence are most important. He had said that without the evidence of the two of you the case against Wally White is not strong. I accept this assessment. The prosecution submitted that I should also take into account the fact that you have placed yourself in a position of personal danger and that it is likely you will have to serve your sentence under more burdensome conditions so as to protect you.

21 Victim impact statements have been tendered by Olive Gully, Jason Gully's wife and the mother of their child, Lae; Jason Gully's mother, Mary-Anne Gully; Jason Gully's father, Graham Gulley; and by three members of the staff, Tea Ercoles who was present during the first robbery, Paige-Louise Pritchard, who was present during the second robbery and Brooke McLean who was present for both robberies. The victim impact statements speak graphically of the terrible consequences of these events. Olive Gully says: "My world came to a sudden stop and caved in on me". She is left now to bring up their son alone. A report of a psychologist annexed to her statement describes the depression, anxiety and stress which she has suffered and continues to suffer. Mary-Anne Gully says: "I no longer live my life, I am here in body but my soul is empty". Graham Gully says: "I lost not only a son whom I loved dearly but also my friend". The staff have also suffered, and I particularly refer to the position of Brooke McLean who was present for both robberies and who, it seems, feels in some way responsible for Jason Gully's death. Her feelings of responsibility are utterly unjustified. She is in no way responsible for what occurred, you and your accomplices are responsible for it. Notwithstanding her own problems it seems that Brooke MacLean has also been a source of support to Jason Gully's widow, Olive.

22 The offences to which you have pleaded guilty are each very grave offences. In the first robbery you took with you weapons which can only have been intended by you to instil terror into the minds of those present. You achieved that objective. On the second occasion, in addition to the knives, the three of you brought a firearm to the Club. Again, the purpose of that was to instil fear and to thereby ensure obedience to your demands. The course you took necessarily involved the risk of use of the firearm with all the consequences that would entail. That is exactly what did happen, and an innocent person with a young family, who was doing what he was employed to do, was killed as a consequence.

23 There are indications in the material of contrition and remorse on your part. Even if that were not the case, your guilty plea would entitle you to a significant discount.[1]

24 The assistance which you have agreed to give in the prosecution of Wally White entitles you to a very considerable discount.[2]

25 Your adolescent and adult life has been dominated by drug abuse, but the fact that these armed robberies were a further consequence of your drug problems is a factor entitled to little weight given the nature of these offences.[3] It is not irrelevant and I do take it into account as bearing on your personal circumstances.

26 It is a relevant factor that the course you have embarked upon is likely to result in you having to serve your sentence in protective custody which will be more burdensome than would otherwise be the case.[4]

27 It seems to me that in your case two factors are of particular importance.

28 The first is the serious nature and gravity of the offences and, in particular, the tragic and shocking consequences of your actions in the second armed robbery in that an innocent life was taken away.

29 The second is the fact that you have now made a full statement concerning the events of the second armed robbery, where that life was so tragically taken away, but not the first, and that you have undertaken to give evidence against the person you say, and the Crown alleges, was the one who pulled the trigger.

30 Specific deterrence is important. You have a prior conviction for armed robbery and a prior conviction for attempted armed robbery. Your criminal history suggests that the prospects for your rehabilitation are not good, but, given your age, your undertaking to give evidence and the material put before me on your plea, I think that there are still prospects for your rehabilitation and I take that into account.

31 General deterrence is also important. Crimes of this kind necessarily involve threats of violence to innocent people. They also necessarily involve the risk of actual violence and the possibility of the most serious and tragic of consequences. That is precisely what has happened here.

32 I have had regard to sentencing practices and trends. In relation to manslaughter, the potential range is very wide and statistics are of limited value, although they may provide guidance by showing general trends.[5]

33 Your brother, John, has pleaded guilty to the same offences as you. He is older than you. Your criminal history is relevantly worse than his. Your prospects for rehabilitation appear better. The conduct of the two of you in the two armed robberies is indistinguishable. Like you, his adolescent and adult life has been dominated by drug abuse. Your situation is to some extent explained by a head injury which you suffered when you were 14. In all the circumstances it seems to me that the two of you should be treated the same in relation to these offences.

34 I will indicate the sentence I am imposing on each offence and I will then turn to address the issues of concurrency and cumulation,[6] and to then fix a non parole period.

35 On the first armed robbery, I sentence you to five years' imprisonment. I have not discounted this sentence for your cooperation and your undertaking to give evidence because you have not fully disclosed the circumstances of this offence in the statement you have now made. I have treated your undertaking as relevant to your prospects of rehabilitation.

36 On the second armed robbery, I sentence you to four years' imprisonment. This armed robbery was more serious than the first, in that you and your brother brazenly returned to repeat your earlier crime and your accomplice took a firearm this time, but I have discounted this sentence substantially because of your cooperation and undertaking.

37 On the manslaughter, I sentence you to eight years' imprisonment. Again, I have discounted this sentence substantially because of your cooperation and undertaking.

38 Whilst the two armed robberies were carried out against the same Club, in somewhat similar circumstances, and within the same calendar month, they were separate armed robberies, involving (with one exception) different individual victims, and they cannot be said, in my view, to be part of the one episode. Accordingly, it seems to me that a significant portion of the sentence on the first armed robbery should be served cumulatively.

39 The second armed robbery and the manslaughter are part of one episode. It is in my view nevertheless necessary that there also be some cumulation in these sentences in order to reflect the serious additional criminality involved in the two crimes notwithstanding that they were committed in the one episode.

40 In the circumstances pursuant to s 16 of the Sentencing Act I direct that three years of the term of imprisonment on count 3 (the first armed robbery) and two years of the term of imprisonment on count 2 (the second armed robbery) be cumulative with the sentence I have imposed on count 1 (the manslaughter) and be cumulative with each other.

41 This produces a total effective sentence of 13 years' imprisonment. I fix a non parole period of nine years.

42 Pursuant to s 18(4) of the Sentencing Act I declare that the period to be reckoned as already served and to be noted in the records of the Court is the period of 846 days.

43 Pursuant to s 5(2AB) of the Sentencing Act I announce that the sentences I have imposed on counts 1 and 2 are less severe than would otherwise have been imposed because of the undertaking you have given and I direct that that course be noted in the records of the Court.

[1] R v Duncan [1998] 3 VR 208, 216 ("Duncan").

[3] R v Bouchard (1996) 84 A Crim R 499 and R v Knell [2001] VSCA 82 at [9].

[4] R v Bangard [2005] VSCA 313; [2005] 13 VR 146, at 149, 152 and 153.

[5] Bangard at 149 and 153, and R v Cameron, 9 November 1995, VSCA, BC9502540 at p.7-9.

[6] In this respect I have endeavoured to adopt the approach explained by Ormiston JA in DPP v Grabovac [1998] 1 VR 664.

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