Director of Public Prosecutions v Synan and Sanderson
[2019] VCC 2194
•18 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-18-01496
CR-18-01497
CR-19-01067
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER JOHN SYNAN and BRENDAN SANDERSON |
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| JUDGE: | His Honour Judge Johns |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 December 2019 |
| DATE OF SENTENCE: | 18 December 2019 |
| CASE MAY BE CITED AS: | DPP v Synan and Sanderson |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2194 |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentencing – co-offenders – theft of motor car – armed robbery – destroying property by fire – guilty verdict following trial – bank robbery – lengthy criminal history – institutionalisation – parity –relevant priors for armed robbery of financial institutions - immediate term of imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Pillai | Office of Public Prosecutions |
| For Peter Synan For Brendan Sanderson | Mr A. Chernok Mr J. Lavery | Theo Magazis & Associates SPA Lawyers |
HIS HONOUR:
1Peter Synan and Brendan Sanderson, in November this year, you were each found guilty by a jury of the offences of theft of a motor car, armed robbery and destroying property by fire. The maximum penalty for theft is 10 years' imprisonment, the maximum penalty for armed robbery is 25 years' imprisonment, the maximum penalty for destroying property by fire is 15 years' imprisonment.
2You, Mr Synan, have also pleaded guilty to cultivating a narcotic plant. I am satisfied on the balance that the cannabis was not grown for a purpose related to trafficking. Accordingly the maximum penalty is one year imprisonment and/or a fine of up to 20 penalty units.
3Your trial commenced on 14 October 2019 and the jury was empanelled on
23 October 2019.4Your offending was captured clearly on CCTV footage. Evidence from the victims within the bank fleshes out the detail of the robbery as depicted by the footage. You each wore a disguise. The case against each of you was a circumstantial one. The details of the key circumstances are set out in the Amended Prosecution Opening for Trial. The evidence in the trial was heard over eight days.
5You had both faced an earlier trial in July where the jury was discharged, having been unable to reach a verdict.
Circumstances of Offending
6On 21 December 2017, at approximately 9 am, you travelled in convoy in two vehicles, Mr Synan's Holden Commodore utility and a stolen Nissan Pulsar, to the vicinity of the Laverton Branch of the Bendigo Bank. The Nissan Pulsar had been stolen by another person in the previous 12 hours or so.
7Both of you then travelled to the Bendigo Bank. The car was parked in Neville Avenue, not far from the entrance to the bank. You both ran into the premises, armed and in full disguise. You, Mr Synan, were wearing a fluorescent safety vest and a frightening mask and wig. You, Mr Sanderson, were wearing a face-covering balaclava. You, Mr Synan, were armed with an imitation firearm. You, Mr Sanderson, were armed with a small crowbar (which might otherwise be described as a jemmy bar).
8As you entered the bank and ordered people to 'Get down', the alarm was activated by one of the tellers. The haste with which you each carried out your tasks in pursuit of the enterprise reflects a degree of professionalism. As you entered, you were both yelling, 'Give us all your money.'
9You were both yelling 'Get down. Get down.' You, Mr Synan, took control of the number of staff and customers that were in the bank. You also opened a number of drawers and took approximately $10,000 cash that was about to be placed into the safe.
10You, Mr Sanderson, concentrated on trying to kick in the door of a safe, apparently.
11You were told by staff that they could not open the safe. You apparently realised that to linger longer and try and break into the secure facility was pointless. As you fled to your getaway car you, Mr Sanderson, dropped items from a bag that you were carrying.
12Obviously, you had both hoped to steal more than the $10,318 that you got away with. Aside from this miscalculation and the haphazard exit which saw you, Mr Sanderson, drop items of evidentiary value from the bag you were carrying, the robbery was executed in a relatively sophisticated, even professional, manner.
13You both fled to the Nissan Pulsar. You drove some distance away where you, Mr Sanderson, set fire to the vehicle. You then made your getaway in the Holden ute.
Objective Circumstances and Victim Impact Statements
14It was noted on more than one occasion during pre-trial argument and during the plea hearing that robberies of financial institutions such as this one are a rarer occurrence these days than they once were. That is in part, no doubt, to advancements in security. An armed robbery in company on a secure financial institution such as the Bendigo Bank is a very serious offence.
15It requires careful planning and preparation. The evidence reflects that this was so in your case.
16It requires a significant degree of control of staff and customers. The power to control victims stems from the fear instilled by your presence and number, your demeanour, your frightening appearance, your verbal commands and the fact that you were both armed.
17The imitation firearm you wielded, Mr Synan, was a frightening device, even for those who recognised it as a home-made imitation that was probably inoperable. For those victims who assumed it was an operable firearm, it was even more terrifying.
18The bar that you carried, Mr Sanderson, was also a menacing weapon.
19You engaged in aggressive and threatening language to effect the robbery. The attempts to force entry to the secure facility added to the atmosphere of violence.
20The robbery was over in minutes, but the trauma caused to the victims was significant and it continues.
21There was no actual firearm used. No discharge of a firearm. No gratuitous acts of violence. Examples of more frightening and aggressive language are available. A more professionally planned and executed robbery would have yielded a greater return than the sum you obtained.
22Absent these observations, your offence nevertheless bears all the hallmarks of a two-man armed robbery of a bank during business hours. As such, it attracts a characterisation that places it in the upper range, and for which you bear a high degree of moral culpability. General deterrence and denunciation are very significant considerations.
23Your conduct impacted severely upon those in the bank. I received three victim impact statements; however, I also saw and heard the evidence from witnesses within the bank. The lasting effects on victims due to the sort of conduct you engaged in are well-known.
24Mr Beresford-Long describes the stress your conduct placed upon his elderly mother.
25Rebecca Josephine Munro wrote:
'I must have lived in a bubble before this crime. I never in my wildest dreams thought that anyone could threaten to hurt me or my colleagues in such a violent and desperate manner just to obtain money…'
'…The weeks after the incident, I couldn't be alone. I didn't want to sleep alone and also couldn't be in an office alone...'
'…I have suffered from anxiety in the past however after the incident managing my anxiety became harder as just thinking about the incident and what could have been made and still makes my chest tighten…'
26Janice Weldon writes:
' I will never forget that day, it will be forever imprinted in my mind it changed me forever. Yes there are days and weeks when I forget but then something small or insignificant will cause me to remember. It will always be a part of my life, and yes it has changed my faith and trust in others. I will never understand why, and I don't think I will be able to forgive.'
27I have taken the victim impact material into account and the impact upon all of the victims of your conduct.
Personal Circumstances- Synan
28Mr Synan, you have engaged in very similar conduct to this offending before. I will come to the details and significance of that offending in a moment. I mention it at the outset because your personal circumstances tell the story, in part only, of how you came to be, in the early 1990s, one of the brazen, lawless, and callous young men who engaged in the high-risk activity of robbing banks and Armaguard vans.
29In the criminal milieu of that time – in which you were ensconced – an offender with the gumption and audacity to engage in that sort of activity may have attained some skewed status. What your motivation was as a 54-year-old man to reprise your earlier exploits remains a mystery.
30You were born in Melbourne in 1963 and raised in Blackburn South. You had three brothers and three sisters. One of your brothers was murdered in 1994 by gun shot.
31Both of your parents are now deceased. Your father worked as a fitter and turner for most of his life. He was also given to alcoholism and violence within the family home.
32When you were 13 or 14 years of age your parents separated, and you remained with your mother. You have described yourself as closer emotionally to your mother than to your father.[1]
[1]See Report Ian McKinnon 27 November 2019.
33You completed schooling up to Year 9 at Blackburn Technical School and finally Burwood Heights High School. You were not academically strong but excelled in trade subjects such as woodwork and metalwork, and you were a keen sports person.
34You left school at 15 and commenced an automotive engineering apprenticeship. That job fell through apparently and you then worked at Holeproof manufacturing company. Subsequent to that employment, you obtained work as a painter and decorator and that remains your trade to this day.
35You started drinking alcohol from age 12 and using cannabis from age 14.
36Your adult criminal record dates from 1980, when you were 17 years of age. In 1982 you served one month and 28 days for burglary. I am told you entered Pentridge at 19, which I accept must have been a frightening and, in hindsight, life-changing experience.
37In 1983 you served two months' imprisonment for dishonesty matters and you were fined for being a prohibited person in possession of a firearm. In 1989 you received 15 months' imprisonment, six months of which was suspended, for a range of dishonesty offences, and again you were fined for firearms offences, including shortening the barrel of a firearm and possessing a pistol or imitation without a licence.
38In the County Court at Melbourne on 20 April 1990 you were convicted of theft, possessing an explosive substance, burglary and six counts of handling stolen goods. You were sentenced to 21 months with a non-parole period of 15 months.
39In 1992 you received four months' imprisonment for reckless conduct and associated driving matters. In 1993 you were again convicted in the County Court, this time for blackmail, and you were imprisoned for 15 months with a non-parole period of eight months.
40In 1993 you were imprisoned for one month for possessing an imitation pistol and other offences.
41Before me on the plea was the transcript of your plea hearing in 2001 in relation to armed robberies committed by you in 1993 and 1994. Your counsel at that time covered much of your criminal trajectory and surrounding circumstances in some detail. I have read that transcript and accept those matters that bear upon your life of crime in an explanatory or mitigatory sense.
42It seems that around the time of your brother's murder, your life went even further downhill than it had previously. The court was told in 2001 that you had been introduced to hard drugs such as heroin whilst in Pentridge and that the trauma of your brother's death sent you further on the self-destructive path of drug abuse. It was said that it was in that context that you committed the armed robberies in 1993 and 1994.
43The details of those robberies are set out in the sentencing remarks of Judge Jenkins and in the Court of Appeal judgment in relation to her sentence, the medium neutral citation of which is [2002] VSCA 38. Both of those matters were before me by agreement.
44I do not propose to set out the details here, save to say your commission of those armed robberies has significant relevance to the sentencing exercise.
45In 1994 you were sentenced to two years and six months with a non-parole period of 18 months for robbery. Later that year you were sentenced to eight months for aggravated burglary, six months of which was concurrent with the earlier sentence.
46On 27 August 1998, you were sentenced after pleading guilty to the armed robbery of the National Australia Bank at Seville on 24 February 1997. You were the getaway driver in a car stolen earlier that day. You waited outside the bank whilst your two co-offenders entered the bank, disguised and armed with a loaded gun. During the course of the armed robbery, the customers were ordered to lie on the ground and a shot was fired.
47You were sentenced by Judge Curtain (of this court as she then was) to a total of eight years' imprisonment with a non-parole period of four and a half years. Before the expiry of the non-parole period, you pleaded guilty to the 1993 and 1994 armed robberies, and on appeal you were re-sentenced to five years for each of those armed robberies, two years of which was cumulative, making a total of seven years' imprisonment to be served concurrently with Judge Curtain's sentence. You became eligible for parole in March 2005.
48The maximum penalty for armed robbery that applied to each of those three offences of armed robbery was 20 years at the time.
49Throughout 2008 you received periods of imprisonment for dishonesty and drug matters. In December 2008 in this court you were sentenced to a total effective sentence of three years and nine months with a non-parole period of two years and three months for being a prohibited person possessing an unregistered firearm and associated offences.
50In 2009 you were jailed for three months for driving whilst suspended.
51You have two biological children and three stepchildren. You had two children with your former partner, and you have remained in your children's lives despite the breakdown of that relationship.
52You have been with your current partner for the past 12 years or so. She is the mother of your three step-children. The past decade or so has been the most stable and productive of your life it seems. You had been working as a painter. Up to the time of your remand and by your own report, you were not suffering a substance abuse problem or particular financial hardship at the time of this offending.
53It is trite to observe that the periods of incarceration I have set out, and in particular the lengthy period from 1997 to 2005 for like offending did not deter you from committing this type of crime.
54I received a psychological report authored by Ian McKinnon which was tendered on your behalf on your plea.
55He stated:
'In my opinion, Mr Synan endured a mixed childhood marked by his father's physical and emotional abuse. At that time, Mr Synan may have been significantly adversely affected (possibly presenting with symptoms associated with ADHD, Conduct Disorder and Oppositional Defiance Disorder) and this is likely to have led him into early delinquent behaviour, or later differential associations in the criminal milieu and the eventual development of entrenched antisocial and criminal character traits – which he still possesses.
However, Mr Synan appears to possess some redeeming features. Mr Synan appears devoted to his partner and family, he possesses viable trade skills which he has applied in a self-employed capacity and, whilst he has a serious criminal history for previous armed robberies and possession of firearms, he has only one (1994) conviction for previous assault –suggesting that, on a day to day basis, Mr Synan is not an especially violent man…'
56I accept all of these observations. Mr McKinnon goes on to opine that your offending was a product of the antisocial and criminal traits you have entrenched during your adult life.
57At some point in your life, due to a variety of factors, you aspired to reach the echelon of offenders who were brazen and reckless enough to rob financial institutions at gunpoint.
58Despite the consequences arising from your previous escapades you determined to go again on the 21 December 2017. You knew the high stakes.
59Whilst on remand you have received regular visits from your partner and children, although recently your partner has been blocked from visiting. You are subject to a management regime which permits you out of your cell no more than 90 minutes per day.
60I am told that you have done drug courses in custody because you want to understand the use of 'ice.' You are a peer educator. I note that in 2001 this court was also told that you held a similar position at that time.
61Your prospects of rehabilitation are in your own hands. It is up to you to put aside your lifelong attraction to brazen lawlessness. At your age, and given the sentence you will undergo, I consider that there are reasonable prospects you will do so.
Brendan Sanderson
62You are now 44 years of age. You were born in Wonthaggi and grew up there. Both parents are alive. Your mother lives in Western Australia but keeps in regular contact with you. I received a letter from her which was exhibited on the plea as BS2.
63Your parents separated when you were four, and you were left living with your father until the age of nine. You have a brother who is two years younger. Your father was an alcoholic, and as a result of inadequate parenting, you were placed in the care of the Department at the age of nine. You were placed in approximately six different foster care placements until being returned to your mother's care at about the age of 12.
64Your mother brought you to Melbourne, and you went to Huntingdale Technical School; however, you struggled to engage, associated with other 'fringe' students there and did not return after the end of Year 8. By this time, you were regularly using cannabis.
65Your prior history indicates an appearance for a burglary in July 1989, not long after your 14th birthday. Your involvement with the courts and the corrections system has continued since that time. In your late teens, your mother moved to Mansfield, and you lived up there working at the ski resort during the snow season, and as a roustabout at other times.
66Your mother writes that you have also played football for the Oakleigh Football Club and then the Bonnie Doon Football Club and that you have also been a volunteer firefighter.
67Your first sentence of incarceration was six months in a youth training centre in October 1992 when you were 17. You were 18 when you received your first jail sentence, which you served at Pentridge prison. Sadly, I was told that you have spent at least a part of every year since your 18th birthday in prison up to the time of the commission of this offence. Your substance abuse progressed to heroin use at the age of 21 and was a significant factor in your offending for the next 10 to 12 years.
68You have attempted various treatments such as methadone, and you have recently been treated on Suboxone.
69In December 2012, you were sentenced in the County Court at Melbourne to five years', one month in prison with a non-parole period of three years and six months. You were not paroled. You were released on 23 November 2017. You were remanded in custody on this matter on 14 February 2018.
70I was told that your family are your only real contact outside of the prison. Your father lives in Wonthaggi and is in poor health. He lives alone, requires a wheelchair and also requires an emergency beacon to summon help if unwell. Your brother lives in Mordialloc and was present, supporting you at various times during the trial.
71You left school at around the age of fourteen and a half or 15 years. Having spent most of your life from your late teens moving in and out of custody, you have not established yourself in regular employment of any kind.
72As noted, you have a significant substance abuse history. You have numerous prior convictions for burglaries, as well as other dishonesty and drug offences. Your history indicates a cycle of reoffending soon after release, including while released on parole. Previous sentences and judgments relating to you and provided to me refer to the danger of your 'institutionalization.'
73As early as 2008, the Court of Appeal wrote the following:
'Sanderson's prior criminal and custodial record is such that he may be regarded as 'institutionalized.' Sanderson admitted 173 dishonesty offences, numerous assaults and drug offences from 17 court appearances between
April 1991 and October 2004. Prior to the sentence in issue, he was last before the County Court on 4 November 2004 when, on appeal from the Magistrates' Court at Sunshine, he was sentenced with respect to three charges of burglary, three charges of theft, two charges of attempting to obtain property by deception, one charge of handling stolen goods, one charge of being found on premises without lawful excuse, one charge of possession of a drug of dependence (methylamphetamine), one charge of possession of ammunition without license, one charge of trafficking a drug of dependence (heroin). '
74In 2015 the Court of Appeal noted the findings of the judge at first instance (in 2012) in relation to issues of 'institutionalization.'
75I note these findings to observe that it is a matter of regret and sadness that the cycle of offending continued in your case and continued with more serious offending. Your prospects must be regarded as fairly bleak.
76I also received a letter from your brother, Gary Anderson. This letter assists in putting your descent into criminal activity into a context. It is tragic that the positive aspects of your life, as he recalls, when you were a volunteer firefighter, a footballer and a good older brother, have all but been obliterated by your engagement with negative peers, substance addiction, and criminal activity.
77Of course, you are not beyond redemption, however. You will serve a significant term of imprisonment. I consider that there is potential for you to live lawfully in the community, and be employed, upon your eventual release.
78In your case, I have taken into account totality in relation to the sentence of 61 days you have served during your period on remand.
Parity
79In relation to the circumstances of the offending, there is no reason to distinguish your roles in any meaningful way.
80In relation to your antecedents, there is a basis for meaningful distinction. Your criminal history, Mr Synan, is more serious and reflective of more sophisticated offending overall than is yours, Mr Sanderson. In particular, the three armed robberies committed between 1993 and 1997 call for specific deterrence to be prominent in your case, Mr Synan. Those matters, together with your history prior to and since that period of incarceration also illuminate your moral culpability for the matters before me. Whilst you are not to be punished for prior matters, your moral culpability and prospects of rehabilitation are assessed in light of these antecedents. The degree of leniency available to you due to repeated incarceration for very serious offending up to 2008 differs markedly from Mr Sanderson's circumstances.
Sentence
81I must impose a sentence that deters others from engaging in such serious, dishonest and violent conduct. I must impose a sentence that adequately denounces your conduct and punishes you for it. I must also take into account specific deterrence. I have also taken into account all of your personal circumstances and your prospects of rehabilitation.
82I have taken the principle of totality into account in relation to the three charges you have each been found guilty of. I consider that modest cumulation is appropriate between the charges in order to reflect the overall criminality.
Synan
83In relation to Charge 1, theft of a motor car, you are to be imprisoned for 12 months.
84In relation to Charge 2, armed robbery, you are to be imprisoned for 10 years. That is the base sentence.
85In relation to Charge 3, arson, nine months' imprisonment.
86In relation to the charge of cultivation, three months' imprisonment.
87I order that three months of the sentence imposed on Charge 1 and three months of the sentence imposed on Charge 3 be served cumulatively on each other and on the base sentence (Charge 2).
88The total effective sentence is ten and a half years.
89I set a non-parole period of eight years.
90Pursuant to s.18 Sentencing Act 1991, I declare that you have served 672 days, not including today, as pre-sentence detention.
Sanderson
91In relation to Charge 1, theft of a motor car, you are to be imprisoned for 12 months.
92In relation to Charge 2, armed robbery, you are to be imprisoned for eight and a half years.
93In relation to Charge 3, arson, you are to be imprisoned for nine months.
94I order that three months of the sentence imposed on Charge 1 and three months of the sentence imposed on Charge 3 be served cumulatively on each other and on the base sentence (Charge 2).
95That makes a total effective sentence of nine years.
96I set a non-parole period of six years in your case.
97I declare pursuant to s.18 Sentencing Act 1991, that you have served 435 days as pre-sentence detention.
98And I make the orders for forfeiture sought. Have I got the PSD right?
99COUNSEL: Yes, Your Honour.
100HIS HONOUR: Are there any other orders to be made?
101MS PILLAI: Your Honour, just in terms of the Holden utility, that was one matter that was in Your Honour's hands.
102HIS HONOUR: Yes, it was.
103MS PILLAI: Submissions were made about that aspect by defence.
104HIS HONOUR: It was, yes. That is right. I will have to stand that matter down.
105MS PILLAI: As Your Honour pleases.
106HIS HONOUR: I had reached a conclusion in relation to that matter, but I have not formulated it as part of the reasons, so I will stand that aspect down to 11.30; are the parties going to be available?
107COUNSEL: Yes, Your Honour.
108HIS HONOUR: That is in relation to Mr Synan only, so Mr Sanderson is excused, and you are excused. Yes, look, I will - there is no other orders other than that matter, which I will rule on. We will resume at 11.30. Mr Synan will be back here at 11.30. Mr Sanderson can be taken down. They can both be taken down now, but Mr Synan will have to come back at 11.30.
109(Short adjournment).
110HIS HONOUR: All right, thank you. I just have to amend what I said earlier. I said earlier I will make the forfeiture sought. In relation to Mr Sanderson, I will sign the forfeiture order as sought. In relation to Mr Synan, I have amended the forfeiture order as sought to delete item 1, the Holden Commodore utility registration. The reasons are that whilst it was conceded on the plea when this matter was canvassed, and that aspect of the forfeiture order was opposed by the defence, it was conceded the car was tainted property.
111However, in considering whether to make an order under s.33(1), I can have regard to sub-s.5A, the use that it is ordinarily made or had been intended to be made at the property, and B, subject to sub-s.5A, any undue hardship that may reasonably be likely to be caused to any person by the order, there was some evidence in this case, and indeed submissions were made further that were not contradicted on the plea, that the utility in question was in effect a family car, in a sense.
112Mr Synan had been in a relationship with Indre Synan for over a decade and she regularly used the car, it would seem. The vehicle itself was obviously used in connection with livelihood and getting from A to B for not just Peter Synan, but others in the family, including Indre Synan. So, I consider that the ordinary use for it was a lawful one, the intended use for it was a lawful one. Others used it.
113And on this occasion, Mr Synan departed from the ordinary use. I consider that there may be undue hardship to Indre Synan if the order were made. And so therefore I am not making the order in relation to the Holden utility. But I otherwise make the forfeiture order sought.
114COUNSEL: As Your Honour pleases.
115HIS HONOUR: All right. I think that concludes the matter. Mr Synan can be taken down again now, thank you. Thank you, everyone. I will adjourn the court.
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