Director of Public Prosecutions v Comer
[2024] VCC 1006
•3 July 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG & MELBOURNE
CRIMINAL JURISDICTION
CR-22-01138
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON WAYNE COMER |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Trial: 8 to 15 April (Verdict 15 April); Plea: 28 June 2024 |
DATE OF SENTENCE: | 3 July 2024 |
CASE MAY BE CITED AS: | DPP v COMER |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1006 |
REASONS FOR SENTENCE
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Catchwords: Trial indictment - Armed robbery upon a bank - Verdict after Trial - 50 years old as at date of sentence - Lengthy criminal history including large number of armed robbery matters (approx. 20) and sizeable past prison terms - Bleak rehabilitative prospects - Some disadvantage Bugmy v The Queen [2013] HCA 37
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. McKenry | Office of Public Prosecutions |
For the Accused | Mr N. Hutton (at Plea) Mr N. Goodenough and Mr K. Powell (at Trial) | Adrian Paull Criminal Lawyers (at Plea) Victoria Legal Aid (at Trial) |
HIS HONOUR:
1Jason Wayne Comer, on 15 April of this year following a relatively brief trial held on circuit sitting down in Geelong, a jury found you guilty of the single charge of armed robbery laid on the indictment.
2You have also pleaded guilty to three summary matters, two of which related to being a learner driver not having an experienced driver alongside you and one Commonwealth matter relating to the use of false information on an airline ticket.
3You are now 50 years of age. You are no stranger to this sort of crime. You have a lengthy and serious criminal history before the Courts, with many similar matters dotted through that history.
4The two summary driving offences have a maximum penalty of a fine of no more than 20 penalty units. There is no provision for imprisonment. The Commonwealth summary matter has a 12-month maximum term of imprisonment. I will really barely mention those summary charges again other than when imposing sentence for them, as plainly enough the armed robbery is by far the most serious offence. The maximum penalty for armed robbery is after all 25 years' imprisonment. It is what is described in the Sentencing Act 1991 as a category 2 offence and, in the absence of one of the exceptions set out within that Act, a prison sentence is required, and one not in combination with a community correction order. Nothing hangs on these provisions at all in this case, as your counsel, Mr Hutton, concedes that, firstly, no such exception exists here and, secondly, that of course a sizable prison term is unavoidable. Undoubtedly each concession was correctly made, and I will say nothing more about those complex provisions within the Act.
5Let me turn then to the sentencing facts in this case.
Facts
6Sometimes, after a trial, it is not necessarily that easy for a judge to make findings as to the sentencing facts. The verdict is one thing. That is always easy to understand, in that it signifies that the jury has determined that the elements of the given offence have been established to their satisfaction beyond reasonable doubt. The factual basis of sentencing may however not be that clearcut from that bare verdict. Sometimes there are shades of grey as to the factual basis or the findings made by the jury in reaching their verdict. The sentencing judge is always required to sentence consistently with the jury verdict and must be satisfied beyond reasonable doubt of any factual matter or finding which aggravates the offence.
7Having said that, there are no difficulties in interpreting this verdict or the factual basis of sentencing in this case. There was no dispute but that an armed robbery had taken place on the 30 April 2021 at the Bendigo Bank, Geelong West branch, and in the manner described by the witnesses. The event was captured on the bank CCTV footage. The only issue in this trial was the identity of the armed robber, not what took place within the bank. The jury was satisfied beyond reasonable doubt that you were the armed offender who entered the bank, produced the firearm, made the demands and then made off with a sum of money being approximately $2,500.
8There is then very little purpose in my descending to the evidence placed before the jury, either from the witnesses who were actually called, or from the agreed material that had been placed before them. As I have said, there was also the CCTV footage which captured the armed robbery which took place at that bank on the afternoon of the 30 April 2021.
9This armed robbery was committed on a bank and they are few and far between these days, as your counsel made clear in his submissions to me. We have grown accustomed to soft target armed robberies committed upon service stations or 7-Elevens or other retail outlets.
10Well, this was an armed robbery upon a bank committed by a mature age offender and one with a highly relevant criminal history.
11You arrived and made demands and presented and raised the weapon. Some of the bank staff were terrified. Ms Jess, for instance, described looking down the barrel of the gun pointed at her head and hearing the offender, you, demand the money, saying ‘Give me your fucking money’. She said she froze, and all her training went out the window. You kept yelling at her she says, and she escaped out into the back room as she thought she was going to die. When she was ultimately in a position to let another staff member in, she collapsed to the ground crying. See the trial transcript 115-119. I will go to her impact statement in one moment, for quite unsurprisingly the impact went far beyond the immediate impact felt by her on the day of the offence.
12The customer who had attended to get some change for her business was shocked. The manager of the bank described the distress of the staff and the customer.
13I believe the factual basis of sentencing is adequately summarised in the amended summary of prosecution opening for trial dated 28 March 2024. That summary sets out the evidence which was placed before the jury from multiple sources, not just what took place within the bank, but the investigation and the very many pieces of evidence which implicated you in the crime. This was an overwhelming case with very clear CCTV footage from inside the bank, as well as the footage taken in the local Geelong central business district area, showing the movement of a vehicle consistent with your car. In your police interview, you denied any role in the armed robbery or presence in the vicinity of the bank on the day. Quite aside from the car footage, there was phone evidence showing the movement of your phone to the vicinity of the bank and at the relevant time. I interpose, you have now pleaded guilty to the summary offence (Summary Charge 3) of driving on that day in Pakington Street, Geelong West, so you admit now that you were in the vicinity. Then there was the internet search history on one of the phones linked to you, with six occasions on the very day of the offence where that phone accessed media reports of this very armed robbery. There was the evidence of your movement up to New South Wales and then back to Victoria under a false name.
14This was serious offending.
15So much, then, for my summary of the offending. Of course, far greater detail can be found in the trial evidence, but as I have said the evidence was not in dispute. The prosecution conclusion that it was you, was the only matter in dispute. The jury was satisfied beyond reasonable doubt that you were the offender, a conclusion which was surely hardly surprising given the overwhelming nature of the case levelled against you.
16I see no need then to go further into the facts, as there really is no controversy as to them.
Impact
17I turn then to the impact of your crime. Even without any impact statements, the short-term impact would be very clear. I have mentioned already how Ms Jess locked herself into the back area and why she did and her emotional state when she was ‘rescued’. I observed the upset state of some of the witnesses. Ms Richards, for instance, was shaking when she gave evidence. That was not a product of nerves in giving evidence. None of the witnesses were grilled under cross-examination., and nor should they have been, as their account was not in any way disputed. It was her recalling your crime, still a traumatic event even many years later. Of course, your conduct, what you said and did in that bank, was designed to strike fear into the tellers and so to facilitate the completed offence. The gun was not carried, produced and raised for the fun of it. It was to bring about compliance with your demands and to drive home the seriousness of their predicament. It worked. It was terrifying.
18I do have three impact statements. One from Ms Jess, one from Ms Richards and one from the manager, Mr Barker.
19Two were read aloud. Ms Richards' impact statement was not, but of course I have read it myself.
20Indeed, I should say I have read all the impact statements again since the plea and all the other material filed on your behalf.
21I will go only to a few aspects of that filed impact material. Mr Hutton indicated that none of it was in any way challenged.
22Jeanine Richards was one of the tellers. She feels angry about what she has lost by way of personal confidence. She constantly looks over her shoulder in public. She took on a lower paying role as she could no longer work at the bank. She no longer felt safe, and she became unemployed. She lost what was secure employment, with significant financial impact. Her social circle has lessened, and her life has changed, for the worse.
23Chris Barker was the manager and he understandably felt a sense of responsibility for his staff. This was their safe work environment, one that you intruded into, and it wasn’t safe on this day. He saw anxiety and distress in the immediate aftermath. His staff included mothers of young children, a new father and a trainee who had just started. Staff who had never been involved in such an event. The staff were in shock and the branch could not even open the following week due to that fact and the shortage of staff. One member was away for several weeks, and another was not able to return at all. The only positive that he sees is that no one was actually physically hurt. He left the bank himself after nine years and that was in part motivated by a desire not to be in an area open to public access. He ruminates as to what might have happened and the good fortune that there were the bags of coins that happened to be where they were, for, but for that, no staff would have had access to cash and you were there with a gun making demands.
24Then there is the impact statement from Lisa Jess. Well, her life charged forever. It has been something of a nightmare for her. She thought she was going to die and, at the end of the episode, she collapsed onto the floor crying and struggling to talk and to breathe. The emotional impacts since have been profound and she has developed depression, post-traumatic stress disorder, anxiety and panic attacks and agoraphobia. She has flashbacks and nightmares. Her enjoyment of life has plummeted. She speaks of some of the physical issues, and they are supported by the doctor's letter that is attached to the impact statement. She makes excuses for not leaving her home and, when she does leave home, she feels on high alert. Your crime has had a profound negative impact on her life. Not just on the day, but ever since. An impact on the way that she feels about life and about the way she engages with others, including her partner, friends and family. It has also had a large financial impact. She used almost all of her sick and other leave over the last three years. Taking time off has impacted her progress within the company. She has regular sessions with a counsellor. I've mentioned there is a report from her general practitioner which supports the profound impact arising from your crime. The doctor says, 'Her mental health and physical health has been profoundly affected…’ and later in the report the doctor says, ‘her symptoms have been relentless over the last three years’.
25Now, these are just some of the sentiments of those who have chosen to make impact statements. There were many others in that bank obviously affected by your crime. As to those impact statements, I have set out only some of the detail within them. I have regard to all the impact material placed before me.
26I must not act emotionally or let the impact of your crime swamp the many other sentencing considerations which I am required as a matter of law to take into account. I have to guard against that sort of emotional response. I am though obliged to take into account the impact of your crime. A crime such as this, as you well know, has impact and that is not something that can just be brushed off. The impact of this offending has been large.
27I take into account the impact of your crime.
In Mitigation
28Mr Hutton conducted the plea in mitigation on your behalf. He had not conducted the trial. The jury verdict was returned on 15th April. An application was made by your then counsel, Mr Goodenough, for the plea to be adjourned to last Friday, 28 June. I required compliance with the court Practice Note as to the timely filing of materials to be relied upon.
29Mr Hutton had come into the matter reasonably late in the piece and, on the plea conducted last Friday, he relied upon a late filed written outline of submissions that had been filed on the afternoon before the plea at around 3.00 pm. A short time before that, he had filed a psychological report from Mr Cummins that was dated 5 June.
30On the plea, he correctly withdrew any submission that was contained in the written document that you fell to be sentenced as a Serious Violent Offender pursuant to the relevant Sentencing Act provisions. Armed robbery is after all not a ‘serious violent offenc’e set out within the schedule attached to the Act.
31Plainly enough though, community protection is a matter of real significance in my task.
32Mr Hutton placed before me some detail as to your personal background and in that regard he relied upon the background detail set out in Mr Cummins’ report. Mr Cummins in turn relied upon your account to him. Mr Hutton has placed before me this morning a bundle of documents including some prisoner and education summary documents spelling out your connection to a number of Aboriginal or indigenous programs within prison.
33So, in this way, some detail as to your family background, as well as your educational, employment and relationship history was placed before the Court. The lion's share of it was in Mr Cummins' report. Mr Hutton conceded the objective seriousness of this instance of armed robbery, as well as the importance of punishment, deterrence, both personal and general, as well as community protection.
34He addressed me as to the sizable criminal history and your relatively poor prospects of rehabilitation.
35He made some submissions as to whether the court could be satisfied to the requisite degree that the firearm was a real firearm.
36In mitigation, he principally relied on the following matter:
·Your disadvantaged early background including your claim as to having Aboriginal heritage (Bugmy[1]).
[1]Bugmy v The Queen [2013] HCA 37 (‘Bugmy’)
37In truth, there was little in mitigation. That is not in any way a criticism of Mr Hutton. It is just the fact of the matter. He cannot invent matters in mitigation. He can only work with what he has, and he conceded that there was little in mitigation in this case.
38He correctly conceded that a substantial prison term was required here and one of a dimension where necessarily I would be required to fix a non-parole period. He was not suggesting for one moment that your release would be in any way imminent, and I tell you, it will not be.
Prosecution
39Mr McKenry who prosecuted at the trial, also appeared on the plea. He relied upon some brief written submissions dated 26 June. They were quite uncontroversial and I see no need to set them out in my reasons. Those submissions set out the very lengthy chronology of the matter before the court and though no direct submission was made to me by your counsel, I do not ignore the delay in the finalisation of the matter. Though one might seriously query the wisdom of running a trial in this case, that was your right, and it was not your fault that the trial was not reached on a couple of occasions in 2023. It would not be easy having the matter hanging over your head in that way and I take that into account. It would also seem likely given your initial reception date, which was in May of 2021, that for at least a small part of that period on remand, you would have experienced some increased burden flowing from the impact of COVID-19 upon the way prisoners were held. I take that into account as well. Neither of these matters featured in any way in argument and neither are matters of any great weight.
40The prosecution placed before me the sentencing remarks of Judge Smallwood from 2006 and the summary of one of those offences. The remarks themselves contain the abbreviated summary of each of those offences.
41The Director of Public Prosecutions made submissions as to the high objective gravity of this offence and some of the important sentencing purposes in play. The Director, through Mr McKenry, was calling for a head sentence and non-parole period, but of course your own counsel, Mr Hutton, had already correctly conceded that such an outcome was simply inevitable here. The Crown challenged the application of the principles from the case of Bugmy, given the absence of any real evidentiary foundation and some question marks as to the veracity and/or reliability of your account. They made submissions as to the nature of the gun, and the evidence from witnesses at trial on that score, and the Crown did not accept that the weapon was an imitation weapon. I observe that there is a difference between my capacity to make a positive finding that it was an imitation firearm and my capacity to find beyond reasonable doubt that it was not an imitation. That later finding would involve an aspect of aggravation and hence I would need to be satisfied of that fact beyond reasonable doubt.
42I will come back a bit later to consider the various submissions made by each of the parties. I am not bound by submissions made by either of them. I have to exercise my own sentencing discretion here.
Background
43Let me turn firstly to your background and I will do this relatively briefly. Your counsel pointed to the background details set out in the report of Mr Cummins. There is just no sense in my setting that all out slavishly in these my reasons. How much of it I actually should act on is another thing altogether and I have considered that issue since the plea. For instance, some store was placed on your disadvantaged background arising in an Aboriginal family setting. You mentioned that very early on in the assessment with Mr Cummins. See paragraph 6 of Mr Cummins’ report. You were less enthusiastic in the police interview where you denied having any Aboriginal or Torres Strait Islander heritage. Nor was it in any way referenced by Judge Smallwood, who I might add is a very experienced judge and sensitive indeed to that sort of matter. This morning, as I have mentioned, a number of course certificates and prisoner education reports and other documents have been placed before me and some of them relate to your engagement in Aboriginal cultural programs and community engagement programs.
44This is not one of those cases though where there was evidence called from other persons as to your background or even from you. There were no school or other reports or any contemporaneous material placed before me to flesh out your self-report as to the existence of disadvantage in your early days. You are also seemingly a pretty vague historian, according to Mr Cummins. I will come back to some of these issues when I come to consider the submission made by Mr Hutton as to the application of the principles from the case of Bugmy.
45By way then only of executive summary, you were born in January 1974, so you are 50 years of age. You were raised in Sydney and report that your parents separated when you were five or six. You claim your father was in gaol for armed robbery and your parents never reconciled. Your mother re-partnered when you were still young. Your stepfather worked as a truck driver, and you claim you never had a close relationship with him and suffered some violence at his hands and witnessed violence targeting your brother and your mother. Your mother and stepfather each, it would seem, abused alcohol. Your stepfather is long since dead, your mother is still alive and in her 70s. You report that the family moved around a lot and you went to a large number of schools. You have minimal contact with your brother who is in his late 40s now. You have two half-sisters and a half-brother but have only intermittent contact with them. As a child you became interested in, and involve, in boxing.
46You believe you had left school before your 15th birthday. You then worked in a few jobs. It has been a patchy work history and of course one reason for that was the many times that you have been confined for crimes over the years. As is appropriate given the passage of time, I only have your adult criminal history, but there was no secret made of the earlier confinement as a youth. It was referred to. You claim to have been sexually abused whilst held in some form of youth detention. I have no idea whether that is true or not.
47Drugs and alcohol have been very much problematic for many years, though seem not to have had any role in this offence. Though you deny the offence, you report to Mr Cummins that you were not using when last at liberty. Well, that was at about the time of the offence.
48You have had no history of mental health issues.
49On the personal front, you have three grown up children. The oldest Amber was from an earlier relationship. The other two grown up children who live in New South Wales and your five-year-old daughter, are from your current relationship with Ms Briggs. She still supports you. She lives in Geelong with the five year old.
50You were working at the time of the offence as a self-employed residential fencer. You have worked in that capacity previously.
51You say you are in protection in custody and have been since being held on remand, but that was not in any way being put forward as having any mitigatory value. You are working as a billet. I understood at the time of the plea that you had done no courses or programs in custody because you said to Mr Cummins that you had done them all in the past. But it seems apparent there have been a number of courses that you have done and some of the documents filed today that I have not mentioned relate to examples of the artwork that you have done. So obviously you have done some courses and programs in the current period on remand.
52Your criminal history is both sizable and relevant. I see no need to set out the full details of that criminal history. The formal document does that and it will not change. You do not need me to tell you, it is a serious criminal history before the courts. There are a range of offences over the years including many instances of armed robbery. Your counsel had done the arithmetic and submitted to me that you have committed eight armed robberies in Victoria and 12 in New South Wales and that does not count the two attempted armed robberies in New South Wales and one attempted armed robbery in Victoria or for that matter, the two robberies that are disclosed. Your counsel described it as an extensive history and no doubt that is true. Nothing much hangs on the precise number of prior offences. He said you have robbed banks in the past and the summary of the May 2005 Bendigo Bank robbery in Warrnambool has been placed before me. It makes for extraordinary reading. You were having a pleasant day at the beach with your family. You took a break from the beach where you left your family, saying you were going into the town to get them lunch, but in fact committed a serious armed hold up. The reasons of Judge Smallwood identify the other targets in that Victorian offending in 2005 with retail outlets, post offices and that one bank. Mr Hutton told me there was at least one bank robbed at gunpoint up in New South Wales.
53Judge Smallwood’s sentencing remarks also spell out the importance in that sentencing task of your early guilty plea and the full admissions that you made. See paragraph 1. His Honour emphasised that when offending, you, the offender, appeared to be shaken, that you made no real attempt to disguise yourself and said to many of the victims that no one would be hurt. See paragraph 14. I interpose, none of those features are evident in the matter I am dealing with. His Honour thought, or at least hoped, that at your then age, with the material placed before him as to your efforts in custody, that you truly had motivation to rehabilitate yourself. He said 'In your early 30’s, you are at a time of life when many people with a background such as yours are able to turn it around'. See paragraph 22. He also spelt out to you, the offender, in paragraph 15 of his remarks, the impacts of your crimes, including the ongoing trauma and psychological difficulties suffered by some of your victims. Well, that was said to you almost 18 years ago in August 2006 in this court when that judge sentenced you for those eight armed robberies and one attempted armed robbery. How many victims have since then looked down the barrel of a firearm or imitation firearm held by you? You served out that sentence and then subsequently committed a raft of armed robberies up in New South Wales. You were dealt with in November 2012 in the District Court in New South Wales and then served out that sentence. I am told by Mr Cummins that you were released sometime in January 2020. Here you are again.
54In the criminal history, I have focused only on the armed robberies and attempted armed robberies and robberies. There are also driving, dishonesty, drug, escape, bail and assault prior appearances.
55You have been sent to prison on a number of occasions and you continue to offend upon your release. You have received sizable sentences and they just do not deter you.
56Incidentally, I put aside any consideration of the matters for which you may well at some later stage be extradited up to New south Wales. Some armed robberies are alleged to have been committed subsequently by you on the drive away from Victoria, but they have not been proven and they must not be factored into my task in a negative fashion at all. Indeed, I was provided with no further information by the prosecution as to what was proposed. It is not even possible for me to determine if the New South Wales authorities have any interest in you or any appetite for extradition. I put that matter aside altogether.
57As to the matters in your prior criminal history, you do not fall to be sentenced a second time for any of those past proven crimes. You received those past sentences and served them. Your past criminal history does not in any way aggravate the offending that I am dealing with, but I do have to make judgements as to your moral culpability. I do have to make judgements as to your prospects of rehabilitation, the extent of the need to deter you, your risk of reoffence and the weight to be given to protection of the community. That prior history plainly informs those judgments.
58I have mentioned the report of Mr Cummins. He says you have an anti-social personality disorder and an alcohol use disorder. Your counsel correctly conceded that none of the principles from the case of Verdins[2] were in any way enlivened here.
[2]R v Verdins [2007] VSCA 102
59That report is still of some use. It sets out many details as to your background and contains Mr Cummins’ views as to some of your rehabilitative needs as well as his view as to the risk of reoffence. It is a real worry. He says that risk is a moderate high risk. You seemingly display no embarrassment or shame regarding your prior criminal history. You adopt a very casual manner and suggest to him that you are used to prison and that you will readily adjust to whatever sentence is imposed. That gives more than a hint as to the process of institutionalisation that Judge Smallwood was concerned about, but what choice is a court left with when you commit crimes at the level you choose to commit them? Mr Cummins regarded your long-term rehabilitative prospects as being very guarded. I am not sure I have seen one of his reports with such a pessimistic view, but it is easy enough to understand the basis of his opinion. I have regard to that report.
Bugmy
60Mr Hutton, who appeared for you, relied upon what he said was your disadvantaged early background, to enliven the principles from the case of Bugmy, a decision of the High Court. The Bugmy and Herrmann[3] line of authority is very often raised in the course of pleas in mitigation. It is my sense that it has had a bit of a resurgence over the last couple of years. Certainly, over the last 9 to 12 months, Bugmy-type submissions have featured in the majority of pleas conducted before me. Despite statements in a number of cases as to the need for an appropriate evidentiary foundation, it is almost universally based on self-report to counsel, or self-report to a psychologist, as is the position here. Your counsel conceded there is that difficulty here and further that the Bugmy submission, even if made good, was not a matter heavily relied upon, as he said that the extent of the disadvantage claimed was not as large as was often seen in this Court. He said at one point that you had not come from a middle-class background with private school education. Well, the absence of those sorts of things does not enliven these principles. He submitted that you had not had the best of backgrounds. Again, that doesn’t get to the point of Bugmy. Most prisoners have not had the best of backgrounds. I need to find a level of disadvantage. The application of these principles does not though depend upon evidence of profound disadvantage. There is not that high threshold. The line of authority deals with disadvantage.
[3]DPP v Herrmann [2021] VSCA 160 (‘Herrmann’)
61The fact is that an offender’s circumstances and their experience during their childhood and formative years, must be considered in the sentencing task, not just out of some historical curiosity, but because we as judges recognise that the effects of social disadvantage do not diminish with time. They are likely to have profound and lasting consequences. They can explain, but not excuse, the offending. They can spell out why there has been a faltering trajectory over the course of a person's life. Taking lifelong damage that is the result of childhood exposure to violence, or abuse, or neglect, into account when sentencing is merely the mark of a humane society. To apply these principles though, I have to be satisfied of the background placed before me and also satisfied that it was one of some disadvantage such as to attract the principles. They are critical steps.
62Your counsel conceded there were some question marks as to some of your account as to your background. Last Friday, when I alerted him to the answer that you gave in the interview as to not having an Aboriginal or Torres Strait Islander background, Mr Hutton came pretty close to abandoning the Bugmy submission altogether.
63This morning I have received, and I have mentioned this, the course and education program summary documents, and the artwork for that matter, that spells out your engagement in various programs designed to provide for those with an indigenous heritage.
64The principles derived from this case of Bugmy have been restated in a number of cases since, including that other case that I mentioned of Herrmann. Sometimes there can be a causal or specific connection between a background and offending, sometimes it is just the general application of the principles. Though there seemed to be some doubt on this score, at least when I had regard to the written submissions at paragraph 8, I felt the need to clarify the point and Mr Hutton made it clear that he was relying upon these principles only in the general fashion described in the case law, not in the specific fashion that had been hinted at in that paragraph.
65Well, I did have some reservations about your account of your background. I have mentioned already that you denied even being of Aboriginal background in the police interview. Why did you? Well, no answer has been provided this morning in relation to that question. What was the truth? Was that the truth? Was your account to Mr Cummins the truth in that area? Nor was there any reference to that background in Judge Smallwood’s reasons. So I had this difficulty in terms of the issue of your Aboriginal heritage. I really, as of last Friday, had not the slightest idea one way or the other. I had also the references made by Mr Cummins to some of the difficulties you had in your recollection There was, as of Friday, no material at all placed before me to support any aspect of your account. I have that additional material provided this morning that does provide at least some support for the view that you at least now identify as Aboriginal. What that says about your past background though it is almost impossible for me to know.
66If the background placed before me was yours, then I believe it would admit of some modest mitigation. Well, I have had my doubts, given that this Bugmy submission is a matter put in mitigation and as such, the burden rests on you or your counsel to satisfy the court of the matters, on the balance of probability.
67Having considered the matter since the plea though, I am prepared to find that your background was, to a degree, unenviable. I note there was some consistency with the account of your dysfunctional background as was placed before Judge Smallwood in 2006. I am prepared to find, as I believe he really did, that there probably was a level of dysfunction and instability in your early life. I am prepared to find that you were likely exposed to some violence, saw some, and you most likely had the absence of positive role models in your developmental years. I believe that yours was most likely an unenviable background. That disadvantage, as was raised on your behalf, was not dependent on some positive finding that you were Aboriginal or identified as being Aboriginal.
68I give your background full weight in the way in which that term is employed in the case law, including the cases of Bugmy, and Herrmann that I have mentioned, but also the case of Sabbatucci[4] and as more recently discussed in cases such as Newton[5] and Dhal.[6] I take your background into account as far as I am able to, including as giving rise to some very modest reduction in your culpability. The case law makes it clear enough though that social disadvantage will not attract the same weight in every case, or in the same fashion. The weight to be given to disadvantage will depend on the nature and the extent of that disadvantage, the nexus, if any, with the offending, though no causal link is required, and also the nature of the crime or crimes and the relative importance in a particular case of the sentencing considerations, such as deterrence, community protection and rehabilitation. See the case of Terrick[7].
[4]Sabbatucci v The Queen [2021] VSCA 340
[5]Newton (a pseudonym) v The King [2023] VSCA 22
[6]Dhal v The King [2023] VSCA 289
[7]DPP v Terrick [2009] VSCA 220
69You are now 50 years of age. You were 47 when you offended. Yet again, you have committed a serious crime. Community protection, punishment and general and specific deterrence necessarily must have a large role to play in my task. Rehabilitation, though plainly not irrelevant, must, to a degree at least, take a back seat.
70I do not ignore your background, but there are limits to the application of these Bugmy principles. I apply them to my task.
Remorse
71It was your right to run a trial, but having done so, plainly there is no remorse in this case for the crime of armed robbery. That was conceded. I make plain that you are not to be punished for running a trial. It is just that by doing so, you now do not have at your disposal on a plea in mitigation, the large discounts available to one who has pleaded guilty at an early stage and who is genuinely remorseful for their crime. Those mitigatory considerations are worth a lot and they simply do not exist in this case. You have at least pleaded guilty to the summary matters, and I do take that into account in your favour in the many ways contemplated by the case law in this area. You have taken responsibility for that offending and by your plea you have spared the need for those matters to be proven by the calling of witnesses. I am prepared to find that there is some modest remorse, which can be implied from those pleas in relation to those charges. I take those guilty pleas into account.
Rehabilitation
72I turn, then, to your prospects of rehabilitation. I can be quite brief. Those prospects are poor. You are a mature aged offender. You have been committing crimes for decades, some of them very serious. You have around 20 prior convictions for armed robbery and attempted armed robbery and with the chronology of offending I have already set out in some detail. There can be no doubt at all that you must have an understanding as to the way an armed robbery can impact upon the victim. Judge Smallwood spelt that sort of thing out in his reasons over 15 years ago. Yet you kept committing armed robberies in New South Wales, were dealt with again in 2012 and here you are again at the age of 47 arming yourself with a firearm and committing a serious bank hold-up. I have no doubt at all that when committing this crime, you would understand how serious such a crime is and that, if caught, a court would be left with only one option - a lengthy prison term. Yet you committed it. You have seen the inside of a prison often enough and yet you continue to offend seriously. Lengthy past sentences have not deterred you. You are really, when one examines the prior criminal history, a ‘career armed robber’. The other career you have had over the journey is being a ‘career prisoner’. Neither is a career.
73I have to pass a proportionate sentence and, in exercising that discretion, I have to make judgments as to the need to protect the community from you, and as to your risk of reoffence, your prospects of rehabilitation and the need to punish and deter you. Mr Hutton accepted that your prospects are poor. He raised the possibility that you might grow out of the offending. He said that armed robbery was a young man's game. Well, Judge Smallwood raised that same issue about 18 years ago when you were in your early 30s. You have shown no signs of change. Mr Cummins says your prospects are very guarded. I stop short of saying you have no future prospects at all, but there is no cause for me to hold any optimism. I assess your prospects of rehabilitation as being poor or bleak. I use those word interchangeably. Your risk of offending in this serious manner again in the future is obviously high enough.
Current Sentencing Practice
74I am required to take into account current sentencing practices. It is not a controlling factor.
75I have looked at the Sentencing Advisory Council online resource relating to the crime of armed robbery, as well as some examples of other sentences collected in the Judicial College of Victoria online sentencing manual case collection.
76Statistical material is inherently limited and will never greatly assist a court in the individual sentencing task at hand.
77I am exercising a sentencing discretion in relation to your crime. I am doing that as a judge, not as a mathematician or a statistician. What has happened in other cases or as is disclosed in the statistical data can never provide the answer to my task. Every case is different. Every crime is different. So too is every offender. Statistics do not give any real detail about those matters personal to an accused or even as to the objective gravity of the offending. They are silent as to all the many matters in aggravation and mitigation. What has happened in other cases does not operate as some precedent for me to follow. Many of the cases represented in the statistics would arise from guilty pleas with a whole range of mitigatory features that are plainly absent in this case. Many, if not most, would be ‘soft target’ armed robberies. As I said earlier, a guilty plea is a very significant mitigatory matter for obvious reasons. It does not exist here. You are remorseless. A most unusual feature of this case is that you have some 20 prior convictions for armed robbery. I have had occasion to look at the case of Mansfield[8], a sentencing decision of Judge Mullaly that went to the Court of Appeal back in 2011.[9] I am not suggesting your armed robbery falls at the same level given the way Mansfield and Sinclair’s armed robbery was researched, planned and carried out in company with a loaded firearm. However, I do note that Mansfield was of a similar age, and he pleaded guilty and was remorseful. He had five prior convictions for armed robbery. The Court of Appeal dismissed his appeal. Past sentencing decisions are not precedents. Rather, it is merely an example of the high sentences that are sometimes required for this offence. The 6AAA declaration made in that case was one of 18 years.
[8]R v Mansfield(Unreported, County Court of Victoria, Judge Mullaly, 4 December 2009)
[9] Mansfield v The Queen [2011] VSCA 290
Gravity of Offence
78I am required to consider the gravity of the offence. Well, plainly this was a serious example of the crime of armed robbery and that much was conceded. It had a level of planning, though not the intricate and detailed planning we sometimes see, very rarely, in group armed robberies. Nor the level of planning as described in that case of Mansfield.
79Some armed robberies though have very little planning. Some occur almost spontaneously, with a chance meeting between strangers in the street and a demand made for a phone or wallet, a demand reinforced by the presentation of something found close to the scene and adapted as an offensive weapon. I am not dealing with a crime like that.
80You did not just wander into a 7-Eleven or petrol station on the spur of the moment. You accessed and carried a sawn down firearm. You were at the time as a matter of fact prohibited from carrying any firearm. You drove some distance to the bank in your car to commit the crime, but parked away from the bank. You sought to disguise your appearance. You then left the State and got rid of the car.
81I have spoken already as to the terrifying nature of the crime. I am required to take into account the impact. A number of witnesses were involved. There was the unlucky female customer within the bank who was at the tellers’ counter getting some change for her business. Two tellers were dealing with her. They were all caught up in this crime. One of those was Miss Jess. Others looked on and were also involved. We can see in the footage all the many people who observed this frightening event. It was not a soft target armed robbery on a lone victim. You entered a crowded bank at a busy time and made demands in strong language and then produced and raised the firearm, yelling out ‘hurry up’. The insinuation was very clear that you meant business, that you would use the weapon, if need be. Well that would operate on the mind of the witnesses. That is not dependent upon any finding that the firearm was real and loaded or operational. I am talking of the way you appeared - frightening and desperate. Ms Jess was looking down that barrel and thought she was going to die. It looked real. Your counsel did refer to the depositional statement of one of the many witnesses called, Mr Walsh, where he said he thought it might have been an imitation. In his actual evidence before the court, he said it was a shotgun. The bulk of the various witnesses believed it was a real gun. No- one else even hinted at it being an imitation. Even if it was an imitation, it would be a weapon selected by you above lesser weapons such as a knife and for a reason; to have greater impact upon any person viewing it. A gun, imitation or otherwise, is a scarier proposition to those looking at it. The presence of a gun, even an imitation, conveys to the observers the risk of death or serious injury with a single pull on the trigger.
82While unloaded firearms, imitation weapons, and even innocuous items brandished as weapons, plainly do not carry the risk of injury or death and so are less dangerous than the genuine article, they are still capable of instilling terror in victims and possible serious emotional damage and they are dangerous in terms of potential police response. Police responding to reports of a firearm wielding bandit at a bank will be deployed and will descend with firearms and with the assumption that the bandit has an operational firearm. The police will act accordingly.
83Here the weapon was not discharged. Here the weapon was not located. Nor are there any admissions from you as to the nature or status of the weapon. The only evidence touching upon the issue of whether it was a real weapon or not is that to be found in the descriptions of the witnesses and what can be seen from the stills and the footage.
84Imitation handguns are common enough. You have used them often enough it would seem in the past. I must say, a sawn down imitation strikes me as being a most unlikely imitation item, one that I have not seen before, especially one that has modifications to the heel and butt as well as the barrel, as this one seems to have from the footage that I have observed. At the end of the day though, I just cannot know whether it was or was not real. I do not find on balance that it was an imitation. Importantly though, I cannot find beyond reasonable doubt that it was a real firearm and, even if it was, I could not find beyond reasonable doubt that it was loaded. These are not matters in mitigation. Rather, a finding as to the absence of one feature of aggravation.
85That weapon and your use of that weapon produced the profound impact that I have described. The impact is the impact.
86Plainly enough armed robbery is an inherently serious crime.
87There is no material before me suggesting that you were in any way disinhibited or acting in a state of compromised judgment when you committed this crime. You have no cognitive deficits. You just commit armed robberies. Nor is there any suggestion of any financial need or stress. You were working as a self-employed fencer, and you drove to the vicinity of the bank in a car you had purchased for $5,000 only a couple of months before. You knew exactly what you were doing. You did not do as you have done in the past and reassure the victim that no one would be hurt. Your moral culpability was high.
88This armed robbery is a mile removed from the low-level examples of the crime so often brought before this Court. Bank robberies are exceedingly rare these days. Nor though does it fall at the very highest level, viewed objectively.
89It is my view however that, viewed objectively, this armed robbery represents a serious example of that inherently serious crime. On the subjective level, there are virtually none of the mitigatory matters that so often exist, such as youth or an early guilty plea accompanied by remorse. It was committed by a mature and seasoned offender. One with bleak prospects of rehabilitation. One who has, time and time again, committed this serious crime and been imprisoned. Someone who understands the impacts of such an offence, but someone who simply cannot or will not learn and who reoffends in the same way.
General
90I turn, then, to some general matters.
91In sentencing you, there are a range of matters I am required to take into account, including things such as the impact of your crime, the nature and the gravity of the offence as well as the maximum penalty. I have spoken already of the impact.
92I must also consider the various sentencing purposes set out within the Sentencing Act: Things such as punishment, rehabilitation, denunciation, specific and general deterrence and community protection. When dealing with the lone Commonwealth matter, there are different words employed in the relevant provisions of the Commonwealth Crimes Act, but they amount to very much the same thing. I will not in these reasons traverse through the Commonwealth sentencing regime, but I do have regard to those matters set out in that Act including those matters referred to in s16A(2)
93I do not ignore the issue of your rehabilitation, but you have bleak prospects of rehabilitation.
94I have to punish you justly and proportionately. Punishment is an important sentencing purpose here.
95Community protection is of obvious and real importance in this case. It is fundamental that a sentence must be proportionate to the crime, and that a disproportionate sentence may not be imposed to extend the period of protection of society from the risk of recidivism on the part of an offender. An extension of a sentence merely by way of preventative detention is never permissible to the court. The principle of proportionality precludes such an approach as that. However, the exercise of my sentencing discretion, having regard to the protection of the community, amongst other factors, is perfectly permissible. That is because protection of the community is relevant to the fixing of the appropriate term.[10] . See the case of Veen (No.2).
[10]Veen (No.2) [1988] HCA 14
96Well, you are a real menace to the community and the community must be protected from you.
97Community protection looms large in this case and that much is conceded.
98I have to denounce your conduct. Again, that is important. I do strongly denounce your conduct. Yet again, you have committed a serious crime upon completely innocent members of the public. This bank was a workplace for the employees working within it.
99I must give real weight to general and specific deterrence. Specific deterrence relates to the need to deter you. Clearly, I must try again to deter you from future offending. Courts have tried in the past, with no success. I must try again. You must be deterred from committing such a crime as this ever again.
100I have mentioned general deterrence. That relates to the need to deter others who might be minded to commit this type of offence. General deterrence is a highly relevant purpose of sentencing in this case.
101We, as Judges, must send a very clear message to those who may think it open to commit armed robberies such as yours. The hope is that other like-minded future offenders might actually be deterred from offending. They must understand the sizable sentences awaiting those who do not turn away from the commission of crimes such as yours.
102Prison is a disposition of last resort. That is so whether I am dealing with the State or the Federal sentencing exercise. There is simply no doubt that it is required in this case in relation to the armed robbery. I take the same view in relation to the Commonwealth summary matter.
Totality
103I am required to give consideration to the overall effect of the sentences imposed by me. I have engaged in a last look at the overall effect in endeavouring to avoid a crushing sentence and to ensure that the overall effect is consistent with your actual criminality here. Your overall criminality was high in this case. You can have no expectation of any leniency when committing a crime as serious as this instance of armed robbery. I will run the short sentence on the Commonwealth matter concurrently and will do that by commencing that sentence today.
Sentence
104I will now pass sentence in one moment.
Disposal Order
105There is an application for a disposal order which is not objected to. I have signed that order. I order pursuant to the relevant provisions of the Confiscations Act, the forfeiture to the State of the property referred to in the schedule attached to that order. I am satisfied the requisite conditions for that order are made out and I direct that the property be managed and held in the way identified by the signed order which I have announced in abbreviated for.
106I will have you stand up please, Mr Comer.
107On the charge of armed robbery, Charge 1, I convict and sentence you to 13 years' imprisonment.
Summary Offences
108On Summary Charges 3 and 4, they are the driving matters, you are convicted and fined the aggregate sum of $500.
109On Summary Charge 7, the airline ticket matter, this is the Commonwealth offence, I convict and sentence you to 7 days' imprisonment. That sentence commences today.
Crime Act (Cth) 1914 - Section 17A
110My reasons today will explain why a prison sentence is required on the Commonwealth matter. I am satisfied that no other sentence is appropriate in the circumstances.
Total Effective Sentence
111It follows then that the total effective sentence is 13 years' imprisonment.
Non-Parole Period
112Unless one of the rare exceptions set out within the Sentencing Act applies, I am required by law to fix a non-parole period. Those exceptions do not apply here. I must therefore fix a non-parole period.
113Whether you are actually admitted to parole will be a matter resting entirely in the hands of the Adult Parole Board. I must not speculate as to whether you will be admitted to parole or not. I am prohibited from even considering that possibility. It will be between you and the Adult Parole Board and has nothing to do with me.
114I fix a period of 10 years during which you will not be eligible for release on parole.
Section 18 Pre-Sentence Detention
115You have already spent 1146 days in custody by way of pre-sentence detention and that period is to be reckoned as already served by way of pre-sentence detention and that declaration is entered into the records of the court.
6AAA re Summary Charge 7
116I need to tell you, as I have taken into your guilty plea in relation to the Commonwealth matter, on that Federal matter, had you pleaded not guilty and been found guilty, I would have imposed a 14-day prison sentence.
Discontinuance of Case No. CR-24-01051 – Indictment No. M11002220A
117I note that there's been a notice of discontinuance filed in relation to the prohibited person charge. That notice, though there are differing CR references, it will be plain enough that the discontinuance relates to the prohibited person possess firearm charge that had been filed recently by way of a separate indictment, so I see no need to amend that document or any of them.
118MR McKENRY: May it please the court.
119MR HUTTON: As the court pleases.
120HIS HONOUR: Let me just look at that. I have signed that discontinuance. I will sign the other order in chambers once it is available for me. It is here now, is it? All right, let me just see – are there any other matters I need to deal with at all?
121MR HUTTON: No, Your Honour.
122MR McKENRY: No, Your Honour.
123HIS HONOUR: No. You will go down and see your client downstairs, Mr Hutton, will you?
124MR HUTTON: Yes, Your Honour.
125HIS HONOUR: And no doubt you will speak to him about his rights in relation to the trial and the sentence and the like.
126MR HUTTON: Yes, Your Honour.
127HIS HONOUR: As I say, my practice is to get these reasons back – when I get them back I generally revise them pretty swiftly. I will make them available once I have revised them. It should not be too long.
128MR HUTTON: As the court pleases.
129HIS HONOUR: That completes the matter. Mr Comer can be removed thank you.
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