The sentencing judgment
4Lakatos DCJ noted that the offence to which the applicant had initially pleaded not guilty was that on 20 March 2009 he had robbed Scott Lee of $25,312 whilst armed with a dangerous weapon. His co-offender, Garen Balian, had been sentenced by Frearson DCJ to a total term of 3 years,10 months, with a non-parole period of 2 years, 6 months for a similar offence, after a combined discount of 55% for his plea and future assistance. That sentence reflected a notional starting point of 8 years, 6 months.
5His Honour observed that Frearson DCJ had found that Mr Balian's part in the robbery was being the driver of the getaway vehicle, he was involved in a rehearsal for the robbery and was to receive $1,300 for his efforts. In this case there was a significant contest as to the basis on which the applicant should be sentenced. His Honour observed that much of what was established on the evidence was common, but significant matters, particularly as to the roles of the applicant and Mr Balian, were in contest.
6It was not in issue that the applicant and Mr Balian went to the Forestville RSL Club on 3 March 2009, signing in using their real names. They went again on 4 March with a third person, Harry Kradjian. The applicant and Mr Kradjian were recorded on CCTV footage on the first level which had function rooms, where they inspected some large glass windows. Mr Kradjian was then ejected from the Club and the applicant and Mr Balian went to the gaming area on the ground floor near where the safe was located and cash was held. His Honour found that they were both 'in effect casing the premises', because there was then a plan in place to rob the Club. They remained a matter of minutes, studying the security layout at various locations.
7His Honour accepted the Crown case that there was an inside man involved, a security guard named Vahe Yaacoubian, who knew the applicant through his son. Mr Yaacoubian agreed to be shot during the robbery, so that he could avoid suspicion and would receive a compensation payout from his employer. His role was to give a signal by his mobile phone as to the appropriate time for the robbery to be committed. There were a number of meetings and phone conversations beforehand, in which he and the applicant planned the robbery.
8It was decided to gain entry to the Club by removing a large pane of glass leading to the function rooms. His Honour accepted Mr Balian's evidence that it was the applicant who engaged a glazier to help remove the glass and that another offender, Mr Kashadorian, was to provide the getaway car, even though he was later acquitted of the charges brought against him.
9Mr Balian's role was to drive Mr Kashadorian's car, waiting outside the Club while the robbery took place. Another co-offender Masis Berberian, was to keep a lookout a couple of blocks away and to pick up the man who was to burn the car. He was to receive $1,000 for his assistance.
10The offenders met before the robbery. His Honour found that their discussions included that the applicant and Mr Koupilian were armed with pistols, at least one of which was real and in working order.
11The applicant and two others, one a glazier, removed the window pane. There were a number of patrons and employees present when the applicant and Mr Koupilian, who were both armed, entered the Club at about 1.10 am. The two offenders hid until 1.40 am, waiting for the signal which Mr Yaacoubian gave by mobile phone, indicating that only he and the duty manager, Mr Lee, remained on the premises. They then donned balaclavas, which completely covered their faces.
12The robbery was captured on CCTV. Lakatos DCJ found that while the evidence did not establish who it was that fired the shot which wounded Mr Yaacoubian, the applicant or Mr Koupilian, they were acting in concert and that accordingly, the applicant was criminally liable for the results of that conduct, no matter who fired the shot.
13The shot was fired after the applicant and Mr Koupilian went to the ground floor where they pursued Mr Yaacoubian to the bar where Mr Lee was closing up. They both huddled on the ground, offering no resistance. One of the offenders then shot at Mr Yaacoubian with a small calibre silver coloured revolver, grazing his left thigh. Mr Yaacoubian and Mr Lee were then escorted to an area near the vault. Mr Lee was placed on the ground and his hands secured with gaffer tape. There was a brief struggle between Mr Yaacoubian and one offender, while the other attempted to fire several bullets at him. A number of shots failed to discharge before one shot penetrated Mr Yaacoubian's right rear thigh, coming to rest behind his knee. He was placed on the ground, his hands and feet were also gaffer taped and one of the offenders used his belt as a tourniquet.
14Mr Lee was told to open the safe and that if his swipe card failed, he would be killed. Access was gained and $25,312 in various denominations taken. $180,000 earlier deposited in a time lock safe was inaccessible. The applicant and the other offender then left through the window. The getaway car was driven to Cammeray where it was burnt by another offender named Troy. He was driven away by Mr Berberian.
15The applicant was arrested in October 2009, but declined to be interviewed. He gave evidence at the aborted trial.
16His Honour rejected the applicant's case that his offence was on par with that of Mr Balian, with the result that given that his offence was no more serious, the starting point for his sentence should be the same as that of Mr Balian's sentence.
17His Honour noted that at the aborted trial Mr Balian and Mr Berberian had given consistent evidence that they were both co-opted by the applicant, who falsely gave evidence denying any part in the offence or its planning. His Honour accepted that this did not give the evidence which Mr Balian and Mr Berberian had given any greater support as to their respective roles. Nevertheless, he took the view that nothing which the applicant had said could have the effect of impugning their evidence, putting aside legitimate criticisms which could be made as to their evidence and its quality. His Honour was not, however, prepared to accept the parts of their evidence which supported the applicant's case and to reject parts which did not, notwithstanding the caution which had to be adopted to their evidence, given that they were accomplices.
18His Honour accepted the Crown's concession that the evidence had not established that the applicant had entered the Club before the offence using a false name and address. He declined to make any finding as to which offender was then 'more substantially casing the place out', which he considered was subsumed in his finding as to who the organiser of this criminal enterprise was.
19His Honour also rejected the assertion that at the earlier trial he had made a ruling that the evidence of Mr Yaacoubian could not go to the jury because it was 'so unreliable and probably the result of an interest in attempting to mitigate his own role and/or justify his involvement'. He explained that he had then had doubts that the police had taken all reasonable steps to secure Mr Yaacoubian's attendance, without success and further, that he considered that the probative value of the evidence was outweighed by unfair prejudice to the applicant, because his account could not be tested by cross-examination and that as a result, there was a risk that the jury could misuse the evidence.
20His Honour noted that Mr Yaacoubian's untested assertion that it was the applicant who had approached him to become involved was consistent with the sworn evidence of the other co-accused as to how they were approached. He thus concluded that the applicant had also approached Mr Yaacoubian to become involved. He also accepted the evidence of Mr Balian that the applicant had initiated the plan to rob the Club and had organised a number of essential steps taken before the robbery, in which he found that Mr Balian had assisted, including by the acquisition of a firearm and the balaclavas and in helping to case the premises.
21His Honour rejected the submission that Mr Balian's role had been significantly underplayed by the Crown or that the proper starting point for the applicant's sentence was equivalent to that of Mr Balian, having considered their respective roles.
22He was satisfied beyond reasonable doubt that the applicant, along perhaps with Mr Koupilian, was the principal who selected the venue to be robbed, formulated or assisted in formulating the plan to be implemented, enlisted the aid of others and dispensed the proceeds, to at least some of the co-offenders. He thus considered that the applicant was one step above Mr Balian in the enterprise and accordingly rejected the contention that the proper starting point for their sentences should be equivalent.
23His Honour noted in relation to the evidence as to the acquisition of the weapon that Mr Balian's role had been to purchase a firearm after the applicant had attempted to acquire a gun, but had been robbed in the process. He noted that this would not have been known, but for Mr Balian's evidence. It was an admission made against interest, which he had volunteered. There were others. His evidence was that he and the applicant were friends at school. The applicant had told him about the robbery about a month before. He wanted Mr Balian to be one of the principal perpetrators, but he declined. He did agree to become the driver and attended a number of meetings with the applicant and others involved, beforehand. It was the applicant and Mr Koupilian who were giving the directions. He helped acquire a firearm after the applicant had tried unsuccessfully to get one. He also suggested where balaclavas could be obtained from a ski shop at Chatswood.
24Mr Balian attended the Club on 4 March with the offender, who wanted to look at the window and cameras. Because the window was too thick to smash, the applicant got a glazier to pull it out at night. The applicant informed him when the offence was to occur. He helped arrange a safe house near the Club and received $1,500 for his assistance.
25His Honour also had regard to Mr Berberian's evidence that he knew both the applicant and Mr Balian from school. It was the applicant who told him about the offence a few days beforehand, and asked for his help as a lookout for $1,000. He told him where to meet on the night of the robbery and spoke to him some 5 days later and ultimately paid the $1,000 as promised. His Honour considered that evidence supported his conclusion as to Mr Balian's role.
26His Honour accepted that how Mr Balian had supplied information to police had not been straightforward or entirely forthcoming, having at early stages of the investigations withheld evidence and having later supplied evidence against those whom he knew police were aware of. Nevertheless, he noted that his evidence was consistent with that of other offenders and that such help as he had given, related to less significant parts of the criminal enterprise. His Honour compared the applicant's selection of the target, casing the premises, arranging the point of entry, enlisting a glazier and distributing the proceeds, with Mr Balian sourcing the balaclavas, driving to and from the Club and acquiring one of the weapons ultimately used.
27His Honour also considered relevant subjective matters, including the applicant's record, as well as the report of the psychologist Ms Hopkins, which provided information as to his personal background. That included information as to his modest alcohol use between 16 and 20 years of age; increasing consumption of marijuana from age 18; and cocaine use from age 19; as well as a gambling problem developed from age 18. This problem resulted in the applicant at one time using his entire financial resources at the Star City Casino and later gambling up to $15,000 in one hand at the Crown Casino in Melbourne, as well as gambling with considerable borrowings from his parents and brother. His Honour found that while casino records in evidence established gambling of some $123,750 in 2008 and winnings of $41,435, they did not establish the extent of the losses the applicant claimed to have suffered shortly before this offence in the history given to the psychologist.
28His Honour also noted that the account given of the applicant's knowledge of the firearm used in the offence did not accord with the evidence at trial, consistent with the false evidence he had earlier given. His Honour concluded from this evidence that the applicant had neither remorse nor an acceptance of responsibility for his offence, noting the approach he had adopted to the sentencing proceedings, namely a disclosure of only that which was known. In the result his Honour was reticent to accept material which the applicant put forward, which did not have independent support. This had adverse consequences for his assessment of the applicant's good intentions and rehabilitation. Absent sworn evidence his Honour did not accept that what the applicant had told the psychologist as to his contrition was honest. Nor did he accept a handwritten letter expressing his remorse to have been given honestly and bona fide.
29His Honour observed that the applicant had gambled over $110,000 per year in both 2008 and 2009, which explained his resort to unlawful activities to acquire the funds he needed. He also noted the evidence that he had attended the Crown Casino with co-offenders, which he considered supported the proposition that he had had a significant role in eliciting their assistance.
30In considering aggravating and mitigating matters, his Honour took into account the actual use of violence and the fact that the robbery was committed in company, while the applicant was on conditional liberty. As to mitigating matters, his Honour made no positive findings as to either rehabilitation or the possibility of re-offending. Nor did his Honour accept the case advanced that leniency was warranted by reason of difficulties being experienced in custody as the result of the applicant's orthodontic problems.
31His Honour took account of the factors identified in the guideline judgment R v Henry [1999] NSWCCA 111, (1999) 46 NSWLR 346, which is directed at the s 97(1) armed robbery offence and identified mitigating and aggravating factors to be taken into account in sentencing for such offences. He noted that the applicant was a comparatively young offender; that he had a significant, albeit not a long criminal record; the use of a weapon; significant planning; and actual violence, albeit perpetrated on a person involved in the criminal activity, who 'may well have expected it to happen'. He also considered the effect that the violence had on Mr Lee, who was clearly in a vulnerable position, as well as the moderate amount stolen; the use of the firearm; and the number of offenders involved.
32After reiterating the reasons why he had concluded that the applicant's role was more significant than that of Mr Balian, who had not had offences on a Form 1 to take into account, his Honour concluded that the seriousness of what had been a carefully planned, calculated and violent robbery which but for the time lock safe would have secured greater rewards was high. It called for significant recognition of special and general deterrence in the sentence imposed. Special circumstances were found, recognising the applicant's youth and his need for rehabilitation to help overcome his drug and alcohol and gambling addictions. The result was that a longer than normal non-parole period was imposed.
33The 10 year sentence imposed after a 10% discount, with a 7 year non-parole period was fixed to commence from the date the applicant was taken into custody on 9 October 2009.