R v White [2008] VSC 39

2 You were re-arraigned in October 2007 on the same charges and you again pleaded not guilty. On 17 November 2007 the jury in that second trial found you guilty of the crimes of armed robbery and murder. On 29 January 2008 I heard a plea on your behalf.

3 The maximum penalty for murder is life imprisonment. The maximum penalty for armed robbery is 25 years' imprisonment.

4 The armed robbery and the murder occurred on 28 November 2004 at the Freccia Azzurra Club in Springvale Road, Keysborough. The victim of the murder was Jason Gully. Mr Gully was employed at the Club as a security guard. He had been employed in that capacity following an armed robbery that had occurred at the Club on 2 November 2004.

5 In the armed robbery on 28 November 2004, where Mr Gully was murdered and which I will refer to as the second armed robbery, you were accompanied by two co-offenders, named John Kohunui and Tame Kohunui. John and Tame Kohunui are brothers. They had also taken part in the armed robbery at the same club that had occurred on 2 November 2004, which I will refer to as the first armed robbery. A third person, Mark Herbert, committed that first armed robbery with them. You were not involved in the first armed robbery.

6 In the second armed robbery John Kohunui and Tame Kohunui were armed with knives, as they had been in the first armed robbery. You brought a firearm to the second armed robbery. It was a high powered rifle, similar to an AK 47. The rifle was identified by a firearms expert in the course of your trial as a Valmet Hunter.

7 According to the evidence of John Kohunui in your second trial, he and his brother, Tame, had seen a security guard at the Club on a visit they made to the Club between the first armed robbery and the second armed robbery. His evidence was that they discussed the presence of a security guard with you, and he said that one of the things discussed with you was that because there was a security guard the three of you would probably need a gun. His evidence was that in response to that you had said that you could get one. John Kohunui's evidence also was that before the second armed robbery the three of you decided part of your role would be to deal with the security guard.

8 Mark Herbert also gave evidence about prior knowledge of the presence of a security guard. He was involved in the first armed robbery, and, according to his evidence, he was at some point after that first armed robbery asked by the Kohunui brothers to become involved in a second armed robbery. He said that they told him there was a security guard there then. According to his evidence that was the reason why he did not want to be involved in the second armed robbery. Keang Lek gave evidence that Tame Kohunui rang him on the night of the second armed robbery and asked him to go to the Club and to then report back on what he saw. Keang Lek said he did not in fact go to the Club but he pretended to Tame that he had and, according to his evidence, he told Tame there were a few people there and a security guard.

9 Tame Kohunui's evidence was that he did not know there was a security guard present at the Club until the three of you arrived at the Club to carry out the armed robbery.

10 I do not accept the evidence of Tame Kohunui on the issue of prior knowledge of the presence of a security guard. Generally, I found Tame Kohunui's evidence to be less credible than that of John Kohunui. His evidence on this issue was inherently improbable, was not consistent with John's, and was not consistent with the evidence of Mark Herbert and Keang Lek.

11 I am satisfied beyond reasonable doubt that the three of you were aware a security guard was present at the Freccia Azzurra Club prior to the second armed robbery and that it was for that reason that you brought the loaded high powered firearm to the armed robbery.

12 You and your co-offenders arrived at the Club at approximately 11.39 pm on 28 November 2004. There were a number of staff and patrons present in the club. The three of you bailed up Mr Gully outside the Club and walked him inside. Tame Kohunui entered the gaming area of the Club first. John Kohunui followed him and went behind the bar to collect money from the safe and the tills. You remained inside the Club but just out of the gaming area with Mr Gully.

13 It is not possible for me to say what the exact order of events was thereafter. What is clear on the evidence is that Mr Gully was not prepared to comply with your instructions. He was talking to you, attempting to calm the situation down. You were yelling at him in a loud and aggressive manner. At some point the confrontation escalated. That escalation occurred contemporaneously with Tame Kohunui moving quickly towards Mr Gully. Mr Gully drew his revolver. In the ensuing gunfight Mr Gully shot Tame Kohunui once in the buttock. You fired a number of shots from the high powered rifle at Mr Gully, inflicting fatal wounds to his head and chest.

14 You took Jason Gully's revolver and the three of you left with approximately $10,000 in stolen cash. You left Mr Gully lying fatally wounded on the floor of the Club amongst shattered glass and other debris caused by the shots you had fired.

15 The three of you left the armed robbery in one car. You then separated and met up again at a unit in Hallam.

16 The three of you and a number of other people were subsequently arrested in January 2005.

17 John Kohunui and Tame Kohunui each pleaded guilty to two counts of armed robbery and to one count of manslaughter and were sentenced by me on 8 May 2007.[1] They each received substantially reduced sentences on one of the armed robbery charges and on the manslaughter charge because they had agreed to give evidence against you. They each did give evidence against you in both of your trials.

18 The Kohunui brothers were each sentenced to 5 years' imprisonment for the first armed robbery. They received no discount for cooperation on that sentence because at that stage they refused to name the third robber at the first armed robbery. The fact that they had pleaded guilty to that armed robbery was taken into account in their favour. They were each sentenced to 4 years' imprisonment for the second armed robbery and to 8 years' imprisonment for the manslaughter. They received a substantial discount on those sentences for their cooperation. I directed that 3 years of the term of imprisonment in relation to the first armed robbery and 2 years of the term of imprisonment in relation to the second armed robbery be cumulative with the manslaughter sentence and with each other, producing a total effective sentence for each of them of 13 years' imprisonment. In each case I fixed a non-parole period of 9 years.

19 Mark Herbert, the third robber in the first armed robbery, in which you were not involved, pleaded guilty to one charge of armed robbery on 16 July 2007 and was sentenced by me on 18 July 2007.[2]

20 On your plea I was told that you were born on 9 April 1980 in New Zealand. You are now 27 years of age. At the time of these offences you were 24.

21 Your parents are Maori. You were the fifth of six children. You came to Australia in 1982 at the age of two years. Your family first settled in Newcastle but you moved around a lot through the course of your childhood. The family was under constant financial stress. You attended many primary schools. You eventually came with your family to Victoria. In Victoria you continued moving schools. You completed Year 10 of high school.

22 On 31 March 1998 you were convicted at the County Court at Melbourne on a charge of armed robbery and were sentenced to a term of detention in a youth training centre. I was told on your plea that this conviction and sentence occurred during the course of Year 11 and that it brought your schooling to an end. I was told the armed robbery occurred at Chadstone Shopping Centre and that you and an accomplice, who had a knife, stole personal property belonging to a shopper. I was told that at the time of the offence you were 17 years of age. Your counsel described the offence as unsophisticated and yielding very small proceeds.

23 Before that conviction, you had on 13 December 1996 been sentenced to a youth supervision order on charges of trafficking in a drug of dependence (heroin) and failing to answer bail. On 17 April 1998 you were dealt with for breach of the youth supervision order. The order was cancelled and you were sentenced to terms of detention in a youth training centre.

24 You also have prior convictions for driving offences, for possession of a regulated weapon, and for affray. On 19 May 2004 you were convicted at the Magistrates' Court at Dandenong of offences of trafficking in a drug of dependence (heroin), failing to answer bail, and using a drug of dependence (heroin). You were released on an intensive correction order.

25 At your trial your counsel led evidence from various Crown witnesses to the effect that at the time of the second armed robbery you were a drug trafficker in heroin. That was an important part of your defence, as it was put forward as the explanation for certain conduct, particularly certain phone calls, which were relied upon by the Crown as being incriminating.

26 On your plea ten references from your friends and associates were tendered. I have read those references and had regard to them. As your counsel submitted, they reveal you to be a person well regarded and respected by those friends and associates.

27 The Crown tendered a bundle of copy victim impact statements. With the exception of a victim impact statement which was referrable solely to the first armed robbery, these victim impact statements were copies of the victim impact statements which had been filed in relation to John Kohunui and Tame Kohunui.

28 The victim impact statements tendered are 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, Graeme Gully; and by two members of the staff who were present during the second armed robbery, Paige-Louise Pritchard and Brooke McLean. The victim impact statements speak graphically of the terrible consequences of your actions that night. Olive Gully says: "My world came to a sudden stop and caved in on me". She is now left 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. Mary-Anne Gully says: "I no longer live my life, I am here in body but my soul is empty". Graeme Gully says: "I lost not only a son whom I loved dearly but also my friend". The two members of staff, Paige-Louise Pritchard and Brooke McLean, have also suffered considerably as their victim impact statements reveal.

29 On your plea your counsel relied on the following matters:

(1) He dealt with the circumstances of your prior convictions, suggesting that the particular circumstances of the offences revealed them to be of a less serious character than might appear from the nature of the offences themselves. I have already referred to what I was told were the circumstances of the armed robbery conviction in March 1998. I was told on your plea that the regulated weapon which was the subject of one prior conviction was a metal baton which had been made by a friend of yours at school. I was told that the affray matter was a "punch on" in a park involving you and approximately five others. The only occasion upon which you have been incarcerated previously is the time you spent in the youth training centre as a result of the matters in March 1998 and the breach of the youth supervision order in April 1998.

(2) You have been in custody since 26 January 2005 and have been through two trials. It was submitted that the long delay which has occurred between your arrest and your eventual conviction, and the fact that you were underwent two trials, means that in your case the criminal process has been more burdensome on you than would ordinarily be the case.

(3) Reliance was placed on the references to which I have already referred.

(4) It was submitted that in jail you have conducted yourself in a manner which indicates that there are good prospects for your rehabilitation. I was told that you have kept yourself very fit and that you read, play guitar and write songs. I was told that you have converted to Islam and that you pray regularly. I was told that you are a prison mentor.

(5) When the offences occurred, you were 24, which, it was submitted, placed you "just outside" what could be described as a youthful offender.

(6) I was told that since November 2006 you have been held in protective custody because of concerns in relation to the position between you and the two Kohunuis. It was submitted that as you have been held in protection since November 2006 it will now be difficult for you to rejoin the mainstream and that you might be held in circumstances of protection indefinitely.

30 Your counsel on your plea did not seek to rely on any other matters concerning your own personal or family circumstances or background.

31 On behalf of the Crown it was submitted that the circumstances of this murder placed it at the "high end" of the range. It was submitted that the armed robbery was planned; that the plan involved bringing a high powered firearm, ready for use, to the armed robbery; that you knew a security guard would be present; and that you fired several times, inflicting fatal injuries upon a victim who was simply doing his duty, acting honourably and bravely. It was submitted on behalf of the Crown that the prospects of rehabilitation did not appear to be good. Reference was made to the fact that the trial was conducted on the basis that you were at the relevant time a drug trafficker.

32 Your counsel broadly accepted the Crown's characterisation of the circumstances of the crime. He did not make any submission contesting it. I accept the accuracy of what I have set out as the Crown's characterisation of the circumstances.

33 Subject to what follows, I accept the submissions of your counsel in relation to the matters put in mitigation.

34 Your prior offences are less serious than the offences of which you have now been convicted. Your prior convictions are less extensive than the prior convictions of the two Kohunuis.

35 My assessment is that there are prospects for your rehabilitation. You were relatively young at the time of the offences. I accept what was put about your activities and attitude whilst in prison. Given your history and the nature of these crimes, I would not describe your prospects of rehabilitation as good. But there are still prospects that you will be rehabilitated.

36 It is difficult to assess what the circumstances of your incarceration are likely to be. The position between you and the two Kohunuis may mean that some placement options will not be open to you because of the need to separate you from them. It may be necessary to take steps for your protection. Your counsel accepted on the plea that in the present circumstances it was not possible to go any further than to say that your incarceration is likely to be more burdensome than it would otherwise be for an indeterminate period. I proceed on that basis, and I have taken that matter into account.

37 The offences of which you have been found guilty are each very grave offences. Your purpose in taking the firearm to the armed robbery was to instil fear and to thereby ensure obedience to your demands. Mr Gully would not accede to your demands and the confrontation escalated, you used the firearm and killed an innocent person who was bravely doing what he was employed to do. An innocent man died; a wife lost her husband; a son lost his father; and parents lost their son.

38 You have pleaded not guilty in both of your trials. Your counsel on the plea did not suggest that in the circumstances here there was any basis for a finding of contrition or remorse.

39 Specific deterrence in your case is important. General deterrence is even more important. Violent crimes of this nature, where the perpetrators are motivated by nothing more than the desire to obtain money, are the most serious kind which come before the courts.

40 On the murder charge I sentence you to 22 years' imprisonment.

41 On the armed robbery charge I sentence you to 7 years' imprisonment.

42 The armed robbery and the murder are part of the one episode. It is in my view nevertheless necessary that there 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.

43 In the circumstances pursuant to s 16 of the Sentencing Act I direct that 4 years of the term of imprisonment on count 2 (the armed robbery) be cumulative with the sentence I have imposed on count 1 (the murder).

44 This produces a total effective sentence of 26 years' imprisonment. I fix a non-parole period of 20 years. 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 1126 days.

[1] [2007] VSC 180 and [2007] VSC 181.

[2] [2007] VSC 264.