Stuart v R

Judgment

1. HOEBEN CJ at CL: I agree with Harrison J.
2. HARRISON J: Mr Stuart seeks leave to appeal to this Court against the sentence imposed upon him by Garling ADCJ on 29 November 2013 on the single ground that his sentence, when compared to that imposed upon a co-offender Laurence Glover, gives rise to a justifiable sense of grievance.

Background

1. Mr Stuart and Laurence Glover appealed unsuccessfully against their convictions to this Court: Glover v R; Stuart v R [2015] NSWCCA 285. The factual background to the charges faced by each man is conveniently summarised at [8] - [20] in the judgment of Basten JA as follows: "[8] Count 1 alleged the theft of a black Audi RS4 Avant station wagon MS 2530, which, together with the car keys, was stolen from the home of its owner on the night of 3 May 2011. Carr and Stuart (but not Glover) were charged with that offence, but were acquitted. There followed three robberies at hotels in the eastern suburbs of Sydney between 4 May and 7 June 2011. The prosecution alleged that the black Audi was used as a getaway car in each case. All three accused were charged in relation to each offence, the prosecution case being that Mr Carr drove the motor vehicle and Messrs Stuart and Glover entered the respective hotels. [9] The first robbery (counts 2 and 3) occurred at the Nelson Hotel on Oxford Street, Bondi Junction, shortly after 10pm on the evening of 4 May 2011. The two offences resulted from separate acts of robbery involving the deputy manager of the hotel, from whom an amount of some $10,000 was taken, and a bar attendant, from whom the contents of the bar till were taken, being a little under $4,000. In submissions, the two counts were referred to as the first robbery. [10] The second robbery (count 4) took place on the same evening at about 10.30pm at the Sands Hotel, Maroubra. An amount of $12,800 was taken from the general manager, who had been counting the daily tills at the time one of the offenders kicked in her office door. [11] The third and fourth robberies occurred some five weeks later, on 7 June 2011. The third robbery (count 5) involved the Rose of Australia Hotel at Erskineville. Two offenders entered the hotel at about 10.50pm and escaped with a small amount of money from a till (about $1,250). Some 15 minutes later, offenders robbed the Excelsior Hotel at Surry Hills, taking approximately $7,688 (count 6). Police were alerted to the robbery as it was taking place and drove in front of the Audi which was parked outside the hotel. In seeking to escape, the Audi was driven into the police vehicle, mounting the pavement and, as described by Constable Scrymgour, the Audi 'climbed up and over the bonnet of the police vehicle' before driving off. Police recovered a screwdriver which had been used by the offenders. [12] Prior to the robberies on 7 June, the black Audi with its correct number plates, MS 2530, had been observed in a secure underground car park in Cowper Street, Randwick. On 8 June 2011 a police officer inspected the vehicle, which then bore number plates AWC 07T. [13] On 10 June 2011, shortly after 9.00am, Mr Carr visited the police website on which there were details of the robberies at the Rose of Australia and Excelsior Hotels. On the morning of 27 June 2011, he again visited the website and accessed a media release relating to an armed robbery in Randwick. Shortly after midnight (on 28 June), the black Audi was taken from the car park in Cowper Street, driven to a nearby lane and set alight. Mr Carr was charged with destroying the Audi motor vehicle (count 7). Another person was also said to have been involved in the torching of the motor vehicle; neither Glover nor Stuart was charged with that offence. [14] On 4 July 2011 there was a break-in at a house in South Coogee, car keys were stolen from the house and the motor vehicle, another Audi, registration number BLE 66F, was stolen. Messrs Carr and Stuart were charged with breaking and entering the house and stealing the keys and the vehicle (count 8). Both were acquitted, but the stolen vehicle was involved in subsequent offences with which the three accused were charged. [15] A fifth robbery occurred on Monday, 18 July 2011 at the Malabar RSL. Shortly after the club opened (at about 11.30am) two men, alleged to be Glover and Stuart, entered the premises and required staff of the club to open a safe and an ATM from which approximately $94,550 was taken (count 9). A different staff member was required to empty money from a till: approximately $6,420 was taken (count 10). There was significant evidence linking Mr Stuart in particular to the robbery. That included CCTV footage taken two days earlier which revealed a number of people, including Mr Stuart, at the club and signing the visitor's book, which he did in his own name. [16] Mr Stuart returned to the Malabar RSL on 5 September 2011, again signing in in his own name. At about 7.58am on Wednesday, 7 September 2011, two offenders entered the club, a third offender remaining outside in a stolen high performance Mercedes sports car, without registration plates. The two men who entered the club were wearing hooded jumpers and triangular handkerchiefs tied over their faces, but no balaclavas. No money was taken: the offence (count 11) was identified as attempted armed robbery with a dangerous weapon. Bradley Carr had been arrested on 12 August 2011 and remained in custody on 7 September. Messrs Glover and Stuart were charged in relation to this offence. [17] The final offence (count 12) occurred on 12 September 2011 when two men wearing hooded jumpers and masks entered the Regent Hotel, Kingsford shortly after 10am. An amount of some $59,000 was taken. A witness observed the men leaving the Hotel, both wearing hoods, one clutching a bag and the other an iron bar. They ran to a Mercedes sports car which drove them away. The witness took a note of the front number plate, AP 234, and called the police. Messrs Glover and Stuart were charged with this offence. [18] Various arrests and searches were made on 12 September 2011. A search warrant was executed at Stuart's home in Pitt Street, Waterloo. Police located $5,000 in cash, a pair of red and black gloves, a key to a stolen Mercedes BNN 77U and a pair of Adidas black track suit pants with three white stripes down the leg. The cash was found in bundles held with elastic bands, said to be consistent with money taken from the Regent Hotel. Mr Stuart was arrested and interviewed at Redfern police station. He was charged with the Regent Hotel robbery. In formal admissions dated 5 June 2013 he admitted stealing the Mercedes BNN 77U. [19] Mr Glover was arrested at about the same time leaving premises on Gardeners Road, Kingsford, leased by his girlfriend, Dayna Jennings. He had $1,850 in his wallet and a key to his own motor vehicle, which was located at 43 Dacre Street, Malabar. The unit occupied by Ms Jennings at Gardeners Road was searched; the garage to the unit was also searched, revealing the stolen black Mercedes BNN 77U, displaying stolen plates AP 234. A pair of pink washing-up gloves which contained DNA consistent with that of Mr Glover was found in the vehicle. Similar DNA was found on an interior door handle in the Mercedes. A small black crow bar was located on the passenger side front floor. In addition, number plates from the stolen Audi BLE 66F were also located in the Mercedes. [20] The third man alleged to have been involved in the robbery of the Regent Hotel was Kane Hoskin. At 11.50pm on 12 September 2011, police attended at the Matraville home of Hoskin's girlfriend, Siobhan Kelly. Hoskin was asleep in her bedroom, but was woken and arrested. Police asked if there was cash on the premises and were told there was no large amount present. After his arrest, the bedroom was searched and $18,100 was located in a gift box in the wardrobe, together with an additional $1,500 in a brown bag hanging from the bedpost."