R v Wilson & Carman [2005] VSCA 78

Carman's sole ground, as amended, was that the sentence imposed upon him on count 3 (armed robbery) was manifestly excessive.

8 Before the grounds can be considered it is necessary to say something about the facts. Having regard, however, to the course of argument both as regards conviction and as regards sentence, it is necessary to say of the theft offences only that count 1 related to the theft by Wilson on 7 or 8 April 2000 of a driver's licence from a car, that count 2 related to the theft by both applicants on 2 or 3 May 2001 of a Holden Commodore sedan used in or in connection with the armed robbery and that count 6 related to the theft by Wilson on 10 or 11 May 2001 of a Holden Commodore station wagon.

9 The armed robbery and the endangerment offences were alleged to have occurred on 3 May 2001 in a restaurant in Campbellfield. At 10.51 pm. that day the restaurant was still open. On duty were the proprietor and five members of his staff. Seven of the customers present gave evidence. At that time two men entered quickly through the front door. They were dressed in dark clothing and balaclavas. One man was carrying a .45 calibre pistol and the other a cut down .22 calibre rifle fitted with a silencer. The two men commanded the staff and customers to get down on the floor. As many of those present were slow to respond, the robbers repeated their commands, saying that it was not a joke and that the guns were not toys. Several bullets were discharged from the rifle. Many of the witnesses hid underneath the tables. Because the rifle had a silencer the discharge was (according to the agreed summary provided for the court) not immediately heard by everyone, particularly those who were in the kitchen, namely, Nadia Hermiz and Nizam El Sheikh. Hermiz was washing dishes and El Sheikh was cleaning the kitchen. They heard shots and noises. They looked out through the open servery and saw one of the robbers holding a pistol and facing them. El Sheikh stated that the man was about two metres away from him and the gun was pointed at him. The robber commanded El Sheikh to get down on the floor. El Sheikh saw him cocking his gun. He thought that it might have been a staff member who had put on a balaclava and was playing around with an imitation gun. He told the robber to get out and tried to wave the gun away. The pistol appeared not to be working.

10 The robber walked away and came back with the other robber. The latter commanded the men in the kitchen to get down on the floor. He said, "This is serious." He discharged two bullets from his rifle into the kitchen. One hit a stack of plates. At that point the kitchen staff dropped down on to the floor. The proprietor, who had dropped down on to the floor in front of the bar, heard one of the robbers call for someone to open the register. So he did so. But the robber then pushed him down on to the floor. After removing the money in the main cash register, the robber asked if there was anything else and the proprietor told them that there were two more cash registers across the bar. Another staff member opened the cash register in the pizza preparation area for a robber, who removed its contents.

11 The robbers left the premises with approximately $4,000 in cash.

12 The restaurant premises were examined by Senior Constable Glaser, a firearms and toolmarks examiner. He found five fired .22 cartridge cases; one complete .22 cartridge loaded with a hollow point bullet; and bullet fragments in the vicinity of damaged dinner plates in the kitchen. The cartridge and cartridge cases were all .22 long rifle calibre Winchester "Xpediter" brand. The cartridge cases had been fired from the same firearm. The bullet fragments were consistent with a high velocity .22 long rifle calibre bullet striking a hard surface.

13 Thus, the evidence showed that five shots were fired from a .22 rifle during the course of the robbery and that two of those shots were fired into the kitchen area, where they went between two workers. The reckless endangerment charges related to those two shots.

14 On 15 May 2003 the applicants were pulled over by police while driving a vehicle. They were required to get out of it while it was searched. In it were found a number of items connected with the robbery, including a .45 calibre pistol, a black balaclava and a .22 calibre rifle fitted with a silencer which ballistics evidence confirmed was the firearm discharged in the robbery. In an interview on the day of his arrest, but later than his initial interview, Wilson made full admissions of guilt of the armed robbery. Carman managed to escape during the search of the vehicle. Later in the day he was found hiding in a wardrobe in a bedroom of a house in Broadmeadows and was arrested. He, too, ultimately admitted in interview with the police that day guilt of the armed robbery. It is unnecessary for present purposes to refer to the other Crown evidence linking the applicants with the episode at the restaurant.

15 Although Wilson and Carman each gave and called evidence to the effect that they were elsewhere than at the restaurant at the time of the robbery and each gave evidence that they only eventually admitted guilt in their recorded interviews because they had been assaulted and threatened with further assaults by the police, the Crown case was obviously accepted by the jury. That was that the perpetrators of the robbery were Wilson and Carman. On the Crown case, Carman had been armed with the pistol and Wilson had been armed with, and had discharged, the rifle.

16 In my opinion, both applications concerning conviction can be decided simply by consideration of the respective grounds (ground 3 in the case of Wilson and ground 2(a) and (b) in the case of Carman) that in essence invoke the first limb of s.568(1) of the Crimes Act, namely, that the court should be of opinion that the verdicts of guilty on the two statutory alternatives were unreasonable or cannot be supported having regard to the evidence; and must be so decided simply because of the consequences of a decision favourable to the applicants.

17 Now, the elements of the offence of reckless conduct endangering a person are:- (1) that the accused engaged in the conduct alleged (here, the discharge of the rifle); (2) that, subjectively, the accused intended to engage in that conduct (that is, here, to discharge the firearm); (3) that, objectively, a reasonable person, in the position of the accused, engaging in the very conduct in which the accused engaged, would have realised that the conduct placed, or might place, the alleged victim in danger of serious injury, that is, under exposure to an appreciable risk of serious injury[1]; (4) that, subjectively, the accused was reckless in that he foresaw that a probable consequence of the conduct was serious injury to the alleged victim or, it may be, the danger of serious injury to the alleged victim in the sense of exposure of the latter to an appreciable risk of serious injury, and displayed indifference as to whether or not that consequence should occur (that is, nevertheless went ahead and engaged in the conduct); and (5) that the accused had no lawful excuse for the conduct: R. v. Nuri[2]; R. v. Campbell[3]; Filmer v. Barclay; Mansfield v. Arnold[4]; and Mutemeri v. Cheesman[5]. For present purposes, it is unnecessary to explain the meaning of serious injury or, in relation to the fourth element, to decide whether it is serious injury or the danger of serious injury that must be foreseen as probable. I shall, however, proceed as if the second, and lesser, alternative is the correct one.

18 There can be no doubt, at least as regards Wilson, that the first, second and fifth elements were satisfied, and I should have thought, though it is strictly unnecessary to decide, that it was open to the jury to find that the third had also been satisfied. In any event, it is sufficient to direct attention to the fourth element and convenient to start with Wilson. The question for this court, making its own independent assessment of the evidence[6] and neither disregarding nor discounting the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury had the benefit of having seen and heard the witnesses[7], is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt[8] that, so far as presently material, the applicant had foreseen that a probable consequence of his discharging the rifle into the kitchen area was the danger of serious injury to either alleged victim in the sense of the exposure of him to an appreciable risk of serious injury and that the applicant was indifferent whether that consequence ensued. Wilson's oral evidence naturally did not touch on this question as it was concerned with his claimed alibi in respect of events at the restaurant on 3 May 2001. In his recorded interview he was asked at questions 561 to 571 questions as to his intention in firing the rounds and the result of his doing so, but as regards intention he stated only that it was to scare people and to make them do as they were told by the robbers and as to the result he answered only, in effect, that he achieved his purpose and also answered in terms of actual damage done to inanimate objects and structures. In one question, no. 564, he was asked what he thought was going to happen with the rounds when he fired them, but the answer sought clarification and the question changed to where he thought the rounds would end up, to which he said he "figured" that with a small calibre gun they would go into the floor or into the bar, not far at all. He did acknowledge that it was a reasonable assumption that the rounds might have ricocheted and gone anywhere in the restaurant and might even have hit somebody. Those last answers were, as Wilson's counsel submitted, retrospective, with hindsight, and were not concerned with his foresight at the time. Thus, the recorded interview contained no answer by Wilson that directly or indirectly acknowledged or asserted the necessary foresight and indifference to satisfy the element of recklessness. Mr. Silbert for the respondent, who at the commencement of his address very fairly stated that it was unfortunate that counts 4 and 5 were in the presentment, did submit that it was open to the jury to infer beyond reasonable doubt from the proved facts that Wilson foresaw an appreciable risk of serious injury to the victims (that is, as a probable consequence of his conduct), but counsel seemed to me not to seek strongly to hold the verdicts against Wilson. Be that as it may, I consider that it was not open to the jury on the evidence to infer (that is, to the exclusion, beyond reasonable doubt, of all other, non-inculpatory, inferences) foresight, on the part of Wilson that an appreciable risk of serious injury was a consequence of his discharging his rifle twice, particularly when he had not been asked about this and had not said anything about it in the recorded interview.

19 The case for Carman is stronger since he did not fire the shots in question, but procured Wilson's presence in the vicinity of the kitchen for the purpose of forcing the two members of staff there to lie down**.** If, as I consider, it was not open to the jury to be satisfied beyond reasonable doubt of recklessness on the part of Wilson, who fired the shots, it would seem, at least in the circumstances of this case, impossible for the jury to be so satisfied in the case of Carman. In any event, no answer by Carman in his recorded interview touched on the question of recklessness nor did his oral evidence. Nor, in my opinion, was it open on the evidence in this case for the jury to infer beyond reasonable doubt (in the sense explained above) foresight, subjectively, on the part of Carman that Wilson would probably discharge his rifle and also that an appreciable risk of serious injury to either alleged victim was a probable consequence of Wilson's conduct in discharging his rifle into the kitchen. It is to be appreciated that the case was opened, and the jury was charged, on the basis of concert only and not also in the alternative on the basis of extended common purpose as to possible consequences and as to crimes outside the common purpose but foreseen by a secondary party.[9] It should be said that, after a few questions from the Bench, Mr. Silbert accepted that it was not open to the jury on the evidence to be satisfied beyond reasonable doubt of the element of recklessness as against Carman.

20 It follows that the applications for leave to appeal against conviction must be allowed, the appeals taken to be instituted and heard instanter and allowed, the convictions of each applicant on the two statutory alternatives to counts 4 and 5 quashed and the sentences thereon and the cumulation directions set aside, and judgments and verdicts of acquittal entered.

21 Before I consider the fate of the remaining sentences I set out in summary form his Honour's observations on certain matters bearing on sentence and his findings as to matters personal to each applicant. His Honour stated that not only was the robbery extensively planned but it was carried out in the most dangerous and frightening manner. Carman had pointed his pistol at the manager, cocked it and pulled the trigger, but it had not discharged. It was fortunate that neither of the persons in the kitchen was injured from the ricochet of the two bullets fired by Wilson or by chips from shattered plates. Neither applicant, his Honour found, had shown the slightest indication of any remorse. Wilson, although having no prior convictions, could not claim good character because, as part of his defence, he had conceded that at the time he would break into and steal from motor vehicles. Apart from the fact that he was convicted of two additional thefts, his conduct on the night of the armed robbery was more dangerous than Carman's in that he had fired five shots. Carman, on the other hand, had the prior convictions already mentioned. Further, he had told the jury that he had stolen a car in South Yarra on 13 May 2001 in order to drive home to Seymour. The armed robbery of so-called soft targets such as restaurants and convenience stores was now all too common an offence, his Honour said. It was particularly serious when committed by robbers armed with loaded firearms which they were prepared to use. In sentencing for these serious offences, there was a strong need for general deterrence and, in the case of each applicant, for specific deterrence. Notwithstanding that Carman had the prior convictions, his Honour considered that the head sentence for each applicant should be similar because Wilson appeared to play the leading role, had committed the two additional offences and had been prepared to fire his weapon.

22 Turning to matters personal, his Honour noted that Wilson was educated to Year 10 and had partially completed two apprentices. When he was about 27 he had a rift with his parents over his relationship with Gabrielle Keesing. She had given evidence on the plea on his behalf. They had a son aged about four at the time of sentence. In 1999 Wilson had started working in a motor business in the Goulburn Valley, the proprietor of which had furnished a testimonial supporting him. Wilson attributed his criminal behaviour to the break-up of his relationship with Keesing. His Honour had been informed that in Port Phillip Prison Wilson had completed several courses and was a unit stabiliser in the prison, which had apparently changed him for the better. In addition Keesing visited him fortnightly. She claimed in evidence that since being in custody Wilson had reverted to the person who had been good to her and her two children. His Honour was, however, unable to accept that, having regard to the fact that, on the jury's finding, Wilson had lied in his defence. Although his Honour did not consider that Wilson was entitled to any discount for the lengthy time spent in gaol (otherwise than by way of a declaration as to pre-sentence detention), he expressed the view that that time was totally excessive and inexcusable.

23 Moving to Carman, his Honour, pointing out that his pre-sentence detention was shorter than Wilson's because he had for part of the period been serving another sentence, stated that he was not satisfied that he was entitled to any further discount. His Honour noted that Carman left school after Year 9 and worked at various manual jobs. He lost his position in 1992 as a consequence of a succession of court appearances relating mainly to disputes as to the custody of his daughter who was at the time of sentence aged eight. He had had regular access to her since that date until May 2001, when he was sentenced to a term of imprisonment. Some members of his family had visited him regularly while he had been in prison. He had completed there a number of courses, including one on drug rehabilitation. (In the late 1990's he had had a significant heroin problem.) His Honour rejected the submission that the robbery had been carried out in an amateurish way and the submission that there were any mitigating factors in the way it was conducted.

24 His Honour stated that he had reached the conclusion that each applicant should be sentenced to imprisonment for a substantial period, which should be identical so far as the total effective sentence was concerned. However, by reason of his lack of prior convictions, Wilson should have the opportunity to be paroled at a slightly earlier time than Carman.

25 Since, until the hearing commenced, each applicant was by his various grounds challenging all convictions and all sentences and since the counts were properly joined, s.569(1) authorises this court, if it thinks fit, to re-sentence each applicant on the counts on which he remains convicted.[10] Alternatively, the court may affirm the sentences passed on those counts. Counsel were warned during the hearing, by reference to s.569(1) and R. v. R.H. McL[11]., that if the challenges to the convictions on the statutory alternative counts succeeded the court might increase the sentences for the armed robbery but not so that the total effective sentences or non-parole periods were greater than they were under his Honour's sentence.

26 If the court acts under s.569(1), whether it re-sentences or affirms the sentences on the counts on which an offender remains convicted, it would seem that any application for leave to appeal against sentence would be overtaken.[12] But before the court determined what course it should take under s.569(1) it would obviously have to consider the matters raised in the application concerning sentence. Here, Wilson's grounds 5 and 6 are no longer material, having been overtaken by events. Although his ground 2 covers the theft sentences as well as the armed robbery sentence, no argument was advanced to suggest that the theft sentences were manifestly excessive, and no cumulation was directed in respect of any of them. Wilson's contention of manifest excessiveness is thus confined to the armed robbery sentence and that is all that Carman's application challenges as manifestly excessive. In determining how the discretion under s.569(1) should be exercised it will be necessary to have regard to the contentions on behalf of Wilson that the mitigating factors listed in ground 3 were not given any or any sufficient weight and the aggravating factors listed in ground 4 were given excessive weight. It would appear that the sentencing judge erred in treating the discharge of the rifle as aggravating the armed robbery, at least when at the same time he cumulated portions of the reckless endangerment sentences upon the armed robbery sentence. With the elimination of the reckless endangerment convictions and the consequential absence of any cumulation it is proper and indeed necessary to take account of all the circumstances of the armed invasion of the restaurant as part of the armed robbery and in particular to treat the discharge of the rifle as seriously aggravating the offence.

27 Apart from the non-parole period, which has ceased to bear a proper relation to the total effective sentence by reason of the elimination of the cumulation directions, this is not a case where it is proper to exercise the power of re-sentencing under s.569(1) to increase any sentence imposed on either applicant. The power to increase sentence pursuant to s.569(1) is not one to be used liberally, and, although, as I think, a higher sentence for the armed robbery could properly have been imposed, this is not a case where, as in R.H. McL., a sentence remaining after the quashing of some of the convictions is manifestly inadequate: 8 years' imprisonment was within the range open in the exercise for sound discretionary judgment especially when regard is had to the delay between arrest and trial. As the foregoing implies, having considered the matters put on behalf of the respective applicants, I do not accept their contention that their respective sentences of 8 years' imprisonment for the armed robbery were manifestly excessive. This was a bad example of a serious offence carrying a maximum penalty of 25 years' imprisonment.

It was carefully planned; the offenders were disguised; they carried firearms and one firearm was discharged five times; and staff and patrons were terrorised. So far as the sentence for the offence itself is concerned, I would not interfere with his Honour's imposition of the same sentence on both applicants. Although, in marked contrast to Carman, Wilson had no prior criminal history, it was Wilson who fired each of the shots.

28 For the foregoing reasons I would affirm the individual sentences. It is however, necessary to fix new non-parole periods. Here it is appropriate to distinguish between Wilson and Carman by reason of Carman's prior criminal history, which shows his prospects of rehabilitation to be poor. I would fix a period of 6 years in the case of Carman and 5 years and 6 months in the case of Wilson.

29 Accordingly, I would allow the applications for leave to appeal against conviction and make the orders which I have indicated in the course of these reasons. I would formally dismiss the application for leave to appeal against sentence.

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Judgment (12 paragraphs)

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