R v Z M N [2002] VSCA 140

7. On Tuesday 29 August 2000 at 5 a.m., two staff members, Denis Williams and Deborah Middendorp, and a contract cleaner, Darren Sheppard, were working at the Mornington Tavern (also known as the Tanti Hotel) in Nepean Highway, Mornington. The tavern is a 24-hour gaming venue. Earlier that night a customer (the appellant) had used the ATM cash machine in the tavern and had withdrawn amounts of money on three occasions while playing the gaming machines. The customer had also lodged a work application with staff for a cook's position. Then at 5 a.m. the appellant, wearing a dark coloured top, a balaclava and sunglasses, entered the gaming area from the front entrance of the premises, carrying a pistol. He approached Sheppard, who was cleaning in front of the bar area in the gaming section, and tapped him on the shoulder. He pointed the firearm at Sheppard and forced him to the ground in front of the bar, telling him to "get down". At this time the appellant asked Sheppard where the "woman" was, referring to Middendorp, who was at the time in the toilet. The appellant then told Sheppard to get up and took him around to the rear of the cash office in the gaming area, where he again put him to the ground. He said to Sheppard, "If you fucking move or fucking get up ...", and Sheppard replied, "I'm down, I'm down". The appellant then removed $1,147.95 from the cash drawers and left the premises again by the front entrance.

10. As a result of information received a police covert operative was introduced to the appellant, who was then looking for a second person to assist him in the commission of armed robberies at the Sandbelt Hotel, Moorabbin and the 21st Century Dance Club in Frankston. During a meeting on 4 October 2000 the appellant spoke to the covert operative about the armed robbery committed at the Mornington Tavern and referred to above. On 10 October 2000 the covert operative again met with the appellant in the Mornington Tavern and at this meeting they discussed the commission of further armed robberies in the future. During the meeting the covert operative produced a newspaper article relating to the armed robbery at the Mornington Tavern and while they were talking the appellant stated that he did not want to get rid of the gun used at the Mornington Tavern as it was his "baby". As they left the tavern on 10 October the covert operative had a conversation with the appellant at the door of the latter's car. He was shown what he believed to be a pistol in a home-made holster which the appellant had stored in the front driver's area of the vehicle. The pistol appeared to be a "Browning" .32 calibre black semi-automatic which had an extension attached to the muzzle. After looking at the pistol and discussing it, the appellant placed the pistol back in the holster, wrapped them up and returned them to the centre console of his vehicle.

13. On Thursday 2 November 2000 at approximately 8.10 p.m. a second covert operative met with the appellant at the McDonald's restaurant carpark in Nepean Highway, Mornington. The appellant was then driving a red Hyundai sedan. During this meeting the appellant was handed $5,000 by the covert operative in payment for two pistols, a .32 calibre semi-automatic "Browning" pistol and a .25 calibre "Boa" pistol, missing the magazine. The appellant also supplied four boxes of .32 calibre "Winchester" pistol ammunition as well as nineteen other .32 calibre rounds. During the meeting the appellant had the .32 calibre pistol loaded and located in his right-hand jacket pocket. He produced it and unloaded five of the loose rounds from the firearm into a toiletry bag in which were located the above-mentioned items. All of the items were then handed over by the appellant to the covert operative. The appellant stated that he may have further firearms that could be supplied in the future.

16. The appellant was arrested on 10 November 2000 by members of the Victoria Police Special Operations Group. A search warrant was then executed at the appellant's house, 3 Moona Avenue, Mornington and during the search the police located a home-made pistol holster, surgical gloves, a black balaclava and sunglasses similar to those described by witnesses as having been worn by the appellant at the time of the armed robbery. Police also located a small quantity of cannabis and amphetamine, which the appellant admitted belonged to him. He was taken to the Armed Offenders Squad Office and interviewed. During the interview he denied having committed the armed robbery at the Mornington Tavern or ever having possessed or sold firearms on 10 October and 2 November 2000. He admitted to having been at the Mornington Tavern on 29 August and submitting the employment application form, and having used the automatic teller machine. He said he might have lost approximately $1,000 in gambling. He denied, however, returning to the tavern to commit the armed robbery, saying he was somewhere else at the time. During the interview the appellant admitted possessing cannabis L and amphetamine, giving as his reasons that he possessed cannabis to try to get off prescription drugs, and amphetamine because he was suffering from depression and anxiety.

19. On 19 April 2001 the appellant pleaded guilty in the County Court at Melbourne to a presentment containing five counts, count 1 - armed robbery, counts 2 and 3 - being a prohibited person possessing a firearm, and counts 4 and 5 - possession of a drug of dependence. The appellant, who was aged 31 at the time of the offences, admitted 219 previous convictions from 23 court appearances. These offences included multiple convictions for dishonesty (theft, handling stolen goods, going equipped to steal, obtaining property by deception, obtaining financial advantage by deception, possession of counterfeit money, and possession of stolen property), driving offences (unlicensed driving, dangerous driving, careless driving, failing to stop after an accident, and driving whilst disqualified), escape offences, drug offences, including trafficking in a drug of dependence, firearm offences and criminal damage offences. For these the appellant had been sentenced, inter alia, on eleven occasions to terms of imprisonment. It is noteworthy that the appellant has no previous convictions for armed robbery. The commission of the present offences breached an undertaking to be of good behaviour imposed at the Melbourne Magistrates' Court on 15 June 2000.

22. At the plea, a video tape of the armed robbery was made available to the judge, and victim impact statements of Sheppard, Williams and Middendorp were tendered. The maximum penalties for the offences involved were, for armed robbery, 25 years, for being a prohibited person possessing a firearm, 7 years and for possession of amphetamine, 12 months' imprisonment respectively. The relevant maximum penalty for possessing a small quantity of cannabis was a fine of $500.

25. During the plea in mitigation a psychiatric report from Dr Drysdale and a pre-sentence report by Dr Lester Walton dated 21 May 2001 were tendered to the judge. The appellant himself gave evidence during the plea and counsel for the Crown called Detective Senior Sergeant Iddles. The plea commenced on 19 April, was adjourned part heard to 18 June and was completed on 11 September 2001.

28. On 11 September the appellant was sentenced on count 1 to seven years, on counts 2 and 3 in each case to one year, and on count 5 to one month's imprisonment respectively. On count 4 the appellant was sentenced to a fine of $250. The judge directed that six months of the sentences imposed on counts 2 and 3 be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of eight years' imprisonment, and fixed a non-parole period of four years and six months.

31. On 25 September the appellant filed a notice of application for leave to appeal on the grounds, first, that the sentence imposed was manifestly excessive and that the judge failed to have sufficient regard to the matters in mitigation, secondly when imposing the head sentence, and thirdly when imposing sentence on the count of armed robbery. By later amendment a fourth ground was added, that the judge erred in failing to take properly into account the appellant's past co-operation with prosecuting authorities. On 8 February 2002 the appellant was granted leave to appeal pursuant to s.582 of the Crimes Act 1958.

34. In this Court Mr Dann for the appellant submitted that the judge failed to have sufficient regard to the matters in mitigation when he came to impose the head sentence. These included the plea of guilty, that it was made at an early stage, the consequences of the plea of guilty, the appellant's remorse, his past co-operation with prosecuting authorities, and the combination of factors that would make any period of imprisonment extremely burdensome. Mr Dann conceded that this was a serious example of an armed robbery and acknowledged also the appellant's appalling criminal history. He submitted however that he had no prior convictions for armed robbery and, with the exception of firearms offences, no prior convictions for violence. Accordingly it was argued that had the judge had proper regard to the matters in mitigation, when the judge imposed a 7-year sentence for the count of armed robbery, his Honour must have originally been considering a sentence well in excess of 10 years for this count alone.

37. Under ground 4 it was submitted that the judge failed to take properly into account the appellant's past co-operation with the police. The appellant had been a crucial prosecution witness in proceedings against Shane Cogley, who had been charged with murder. In so doing he had given evidence at committal, at the first trial, and then after Cogley's successful appeal at his re-trial. In consequence, the appellant had placed himself at significant risk, a situation which was plainly accepted by the judge. Cogley is a particularly dangerous and violent man, and this was the second occasion on which he had been charged with murder. It followed that the appellant's imprisonment would be required to be served entirely in protection and in consequence would be much more burdensome. Accordingly, so the argument ran, his past assistance to the police entitled him to a reduction in the sentence the judge was to impose, notwithstanding that that assistance had been in respect of an unrelated prosecution. Mr Dann submitted that the judge appeared to have seen the appellant's past co-operation as having no relevance in sentencing, stating at one point during the plea that his past co-operation could not entitle the appellant to any "suggestion of an informer's discount". He argued that the judge therefore had taken too narrow a view of the relevance of the appellant's past co-operation and in consequence he was denied the benefit that properly flowed from this.

40. During the detailed plea the judge had been informed that the appellant believed that there was a contract out on his life as a result of the evidence he had given in the trial of Cogley. It was accepted that the appellant would experience difficulties in protection within the prison system. He was being treated with anti-depressants as a result of his fear of Cogley and his associates. He suffered from a gambling problem. His wife was in hospital for three months in the period during which the offending had occurred. The appellant had pleaded guilty at an early stage and his background was an unfortunate one, he having observed his mother being shot and killed in Lebanon when he was five years old. In 1991 his father returned to Lebanon for a holiday and was killed. Dr Lester Walton said in his report that the appellant -

"has endured more than his fair share of personal tragedy throughout his life and those issues remained current, in the sense that he is plagued by ongoing nightmares about past events and he remains under threat from other criminals. [The appellant] has a very lengthy history of pathological gambling and parallel substance abuse and he would qualify for a diagnosis of a post-traumatic stress disorder where anxiety is a prominent feature."

44. For all these reasons it was submitted that the sentence imposed was manifestly excessive. Accepting that there had been a longer than normal gap between the head sentence and non-parole period it was nonetheless argued that it was necessary to have that gap occur within the context of an appropriate overall sentence which, it was submitted, had not been imposed.

47. In this Court the Director of Public Prosecutions argued that the sentence needed to be viewed against the appellant's extensive criminal history. The offence itself was very serious and the fact that it was premeditated and planned had been acknowledged by the appellant's counsel during the plea. The judge had been right to describe it as "most serious". It was put that this was a case in which general deterrence, the protection of the community, the likelihood of re-offending, and the need for just punishment all required serious consideration in sentencing. The judge correctly stated that there was not a lot before him suggesting a great likelihood of rehabilitation, although his Honour acknowledged the place of rehabilitation in sentencing the appellant. It was submitted that the judge dealt appropriately with the appellant's co-operation and the fact that he had given evidence against Cogley.

50. In relation to the appellant's co-operation with the authorities, the judge during the plea said to counsel for the appellant -

"The point I am making is I take it into account in an overall sense as part of the circumstances, and it is certainly relevant in relation to his difficulties in custody, but there is no suggestion of an informer's discount or anything like that, the fact that he has given evidence in the past. Strictly applied, it's not that discount that you're seeking, but you're giving it to me as background information and putting it on the basis of the difficulties he will experience in prison." (Emphasis added.)

"I have been told of the circumstances of your giving evidence against the convicted murderer, Shane Cogley, and the suggested contract - if I may so refer to it - that is said to have been put on your life. This was the subject of some evidence given before me. You gave evidence and I also have the evidence, as well as a letter, from Mr Iddles of the Homicide Squad on the subject of your involvement in the Cogley trial. I accept that your time in prison will be spent in protection and will be difficult for you, whether or not there is at this time any contract, as I shall call it, out on your life. However, I certainly accept that you are fearful, whether or not your fears are justified. I find further that it is reasonable that you are fearful."

59. Mr Coghlan argued that whilst this may have been inelegantly stated, the passage made it clear that his Honour was alive to the issue of the appellant having given evidence in another matter and that his Honour considered it a relevant sentencing consideration going towards mitigation of sentence. It was submitted that his Honour was simply stating that the appellant was not an informer in this case, for example, against co-offenders. The judge then stated his intention to take into account his co-operation in the trial against Cogley. Accordingly it was submitted that the sentence was in all the circumstances an appropriate one and that there had been no error in the judge's sentencing reasons.

62. Mr Dann's principal argument was based on the appellant's co-operation with prosecuting authorities. To support a submission that the appellant was entitled to a discount for his assistance, all of which had been given before the commission of the present offences, he relied on R. v. Golding[1] and R. v. Rostom[2].

65. In Golding, two prisoners had furnished the police for several years with important information about the illicit drug industry, their motive being to rid the drug-taking community of violent men. This information had enabled the police to charge and procure the conviction of several drug traffickers. The Golding brothers had become addicted to drugs, which largely explained the series of armed robberies committed by them. Wells, J., in an illuminating judgment, concluded that the brothers were entitled to a discount in the order of 50 percent having regard to all the mitigating circumstances disclosed. Among a series of propositions about sentencing informers, Wells, J. included the following[3] -

"2. A permissible judicial process in sentencing an alleged informant is to arrive at a sentence that would ordinarily meet the case if the prisoner were not an informer, and then to determine what, if any, allowance should be made by reason of his informing work. 3. Courts are opposed to the precept that there should be honour among thieves and, all other considerations apart, sentences and published reasons for them should be so adjusted as to further that opposition. 5. Where a prisoner is shown to have been an informer (whether in the matter in which he has been convicted or some associated matter or matters, or in some matter or matters that has or have no direct relation to the offence for which he has been convicted), the court, other considerations apart, will be disposed to show leniency to mark the good he has done and in furtherance of the policy embodied in paragraph 3 above."

The judgment continues with an exploration of the considerations relevant to the leniency that should be extended to informers. It is clear that the prisoners were sentenced as informers, and that the fact that their work as informers had largely if not completely preceded the offences for which they were sentenced did not prevent credit being given.

70. In Rostom, the offender was convicted of importing heroin, he having been found on his arrival at Melbourne Airport from Lebanon on 22 September 1992 to have a quantity of the drug in his suitcase. In 1986 he had commenced a relationship with Rosina Bedendo, who had formerly been the girlfriend of George Koureas. She was murdered, and Rostom gave evidence at an inquest into her death and thereafter at committal proceedings and three subsequent trials of Koureas. His life was endangered by having done so, and he was forced to seek protective custody while incarcerated. The Court of Appeal took the view that Rostom was entitled to leniency in sentencing notwithstanding that his assistance to the authorities was given in unrelated criminal proceedings.

73. It is necessary now to place the appellant's assistance to the authorities in its proper context. The appellant gave evidence at Cogley's committal on 18 March 1998, at the first trial on 20 November 1998 and at Cogley's second trial for murder on 26 April 2000. The armed robbery the subject of count 1 was committed four months later on 29 August 2000, and the two firearms offences some weeks later in October. The appellant's offences thus occurred well after his co-operation in relation to the proceedings against Cogley had ceased. It is plain that he was and remains very much in fear of retribution from Cogley and his associates, fear which the sentencing judge found was well-justified. It is equally clear that after Cogley's second trial the appellant would have been well aware that if he re-offended and were again imprisoned it would be necessary for him to serve any such sentence in protection.

76. In this Court, the Director accepted that a person's assistance to prosecuting authorities could be taken into account in sentencing notwithstanding that it was given in relation to matters unrelated to the offences for which that person was then being sentenced. He argued however that the appellant was not an informer but rather had been a victim of one of Cogley's crimes and an eye-witness to another and who had given evidence, as any responsible citizen would, in Cogley's trials. It was submitted that he was not entitled to an informer's discount and that it would be an affront to common sense that there should be some notion of earning credit against which he could draw for crimes committed in the future. Indeed, to give an informer's discount in such circumstances might become a form of positive encouragement to the commission of further crimes.

79. 24 Mr Dann was not able to point to anything in the material before this Court to support the view that the appellant acted as an informer against Cogley. The facts set out in the judgment in Rostom[4] suggest that he also did not act as an informer (although he was certainly branded as one by fellow prisoners) but rather gave assistance to prosecuting authorities in circumstances very much like those in which the appellant gave evidence against Cogley. If par. 3 of the headnote to the decision in Rostom[5] suggests that Rostom was given credit as an informer it is, I think, misleading; reference to the judgment[6] shows that Rostom was instead treated as entitled to leniency because he had given assistance to the authorities as a witness against Koureas, which involved serious risk to his life and the certainty of reprisals. In the present case also the judge accepted that the appellant's evidence against Cogley involved serious risk to his life and the necessity for his time in custody to be spent in protection. He was plainly entitled to have the fact that his period of incarceration would be spent in protection taken into account in his favour, and since the source of his need for protection was the assistance given by him to prosecuting authorities his entitlement to leniency in sentencing would thereby be increased. Any prisoner whose term in custody must be spent in protection is entitled to have that circumstance taken into account in sentencing, but the antipathy of other prisoners may have nothing to do with any assistance given by the former to prosecuting authorities. The claim of such a prisoner to leniency in sentencing must surely be less than that of, say, Rostom or the present appellant.

82. 25 It was argued for the appellant that the judge's comments during argument at the plea, and in sentencing reasons, show that no consideration had been given to these matters in the construction of the sentence. But the passage quoted in par. 15 above shows no more than that the judge, correctly I think, asserted that the appellant was not entitled to claim an informer's discount, a view with which his then counsel agreed. On the other hand the portion of the sentencing reasons next quoted shows that the judge gave appropriate consideration to the need for the appellant to serve his sentence in protection, together with the significance of that need having arisen from his assistance to prosecuting authorities.

85. The grounds of the appeal may now be dealt with together. The armed robbery committed by the appellant was a very serious offence. He has an appalling record. When he was attempting to sell firearms to police covert operatives he was searching for partners to commit further armed robberies. His prospects of rehabilitation appear slight. Having regard both to his prior history and the circumstances of the offending a total effective sentence in excess of ten years would have been well within range in the absence of mitigatory factors. Against this background the individual sentences and the total effective sentence may all be seen as lenient, taking into account all the matters in mitigation including the fact that the appellant's sentence must be spent in protection, together with his assistance to the authorities. In respect of these matters, the comparatively short non-parole period is of particular significance.

88. I would therefore reject each of the appellant's grounds of appeal. The appeal should be dismissed.

94. I agree. I add only this. In contradistinction to the case of Rostom, the appellant's assistance to police in the previous murder trial and the consequences for him of that assistance were well known to the sentencing judge. Indeed, Senior Sergeant Iddles of the Homicide Squad was called to give evidence before his Honour of the impact which that assistance had and would continue to have upon the appellant. Unlike the sentencing judge in the case of Rostom, this judge was fully alert to the problems which the appellant faced and the burden which those problems would place upon his custody. The learned judge said that he would take that into account as a factor ameliorating the sentence to be imposed. In addition to the various phrases which his Honour used and which have been referred to by Charles, J.A., his Honour further said to appellant's counsel during the course of the plea the following:

Appellant's counsel: "The next matter, sir, it is appropriate for you to take into account the past co-operation that [the appellant] has provided to police in respect of evidence that you have heard today and what you have been told of at the committal and trial proceedings on the last occasion." His Honour: "I will."

It is clear from the sentence itself, and in this respect I agree with the Director's submission, that it has been adjusted to take account of that previous co-operation. I cannot agree with appellant's counsel's submission that some further and more specific discount should have been accorded in the sentencing process as a mark of the State's recognition of the appellant's performance of his civic duty in the course of the murder proceedings.

99. It is in my view unnecessary and undesirable for this Court to go beyond the well recognised sentencing principles which his Honour applied and seek to formulate some further principle which could not be sensibly explained in the circumstances of this case, where the appellant had the capacity to control his own destiny but chose to commit a serious crime, in the knowledge that, if apprehended, his status in custody would be compromised. It was the prejudice flowing to the appellant from that compromised status which his Honour set out to recognise in the sentencing process. In seeking to distinguish the manner in which he was adjusting the sentence for "co-operation with authorities" from what he called the "informer's discount", his Honour was doing no more, in my opinion, than distinguishing what he was doing from granting those discounts formally recognised in various sections of the Crimes Act (Cth) and the Sentencing Act (Vic).

106. I agree, and I do so for the reasons advanced by the learned President and Charles, J.A.

110. The formal order of the Court will be that the appeal is dismissed.

[1] (1980) 24 S.A.S.R. 161.

[2] [1996] VicRp 60; [1996] 2 V.R. 97.

[4] In particular at [1996] 2 V.R. at 100.