R v Dent
[2005] VSCA 134
•26 May 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 1 of 2004
| THE QUEEN |
| v. |
| DAVID PAUL DENT |
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JUDGES: | WARREN, C.J. and BATT and EAMES JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 February 2005 | |
DATE OF JUDGMENT: | 26 May 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 134 | |
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CRIMINAL LAW - Appeal against sentence - Armed robbery - False imprisonment - Serious breach of trust – Sentence of 6 years for armed robbery and 2 years for each false imprisonment with total effective sentence of 7 years and non-parole period of 5 years - Whether judge erred in failing to give sufficient weight to delay between date of arrest and date of trial - Whether judge erred in making findings contrary to the evidence - Sentence not manifestly excessive - Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. P.A. Coghlan QC DPP with Mr. M Gamble | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
For the Applicant | Mr. C.B. Boyce | Balot Reilly & Associates |
WARREN, C.J.:
The applicant seeks leave to appeal against sentence upon conviction of one count of armed robbery and two counts of false imprisonment.
On 29 July 1999, the Menzies Tavern was the scene of an armed robbery involving four men. The applicant, David Paul Dent and another, Ian Casey, were both charged on one count of armed robbery and two counts false imprisonment. They both pleaded not guilty. Dent and Casey were separately tried and convicted with respect to their involvement in the robbery. Upon conviction, Dent and Casey were sentenced to six years’ imprisonment for armed robbery and two years’ imprisonment on each count of false imprisonment. Each of the sentences for the false imprisonment counts was ordered to be served cumulatively as to a period of six months of each of those sentences, making a total effective sentence of seven years’ imprisonment. A non-parole period of five years was fixed.
From about 1997 until shortly before the robbery, the tavern had engaged security services through a business owned and operated by Dent called Security Risk Control Australia. Casey was an employee allocated to work at the tavern by Dent. The role of Casey was to check upon patron behaviour and collect takings throughout shifts. On 10 June 1999 the tavern terminated the services of Security Risk Control Australia. Casey ceased to work there.
On the night of the robbery, on 29 July 1999, the assistant manager at the tavern, Anthony Davis, asked patrons to leave the gaming area of the tavern and he locked up about 8.00pm. Some time before the tavern closed, two men, Casey and Dent, entered the tavern and hid. A fellow staff member, Erin Pyne, locked the doors and Davis took a till upstairs to the office where other tills had been placed already in the office safe. While Davis was organising the money, he received a phone call from Pyne who was downstairs. She told him there was an enquiry to confirm a restaurant booking. The call came through shortly after 8.00pm. Davis took the call from a person who wanted to confirm a booking for the restaurant the next day under the name of “Anderson”. The caller told Davis that he was from the State Revenue Office. Records revealed that the call was from Dent’s mobile telephone. Davis put the call on hold and went to check the bookings in the next room. He walked a few metres and at the entrance of the restaurant area he was attacked by two men. The first person was wearing a balaclava, dark clothing, a bomber jacket and white coloured rubber gloves, was about six foot one inch in height[1] and held a black bar. The second person was also wearing a balaclava, dark clothing and white coloured gloves and was about five feet eight inches or nine inches and held a handgun. Davis was pushed through a door into another part of the tavern and forced to the ground. His wrists were bound with grey electrical tape and a linen bag was placed over his head. He was unable to see. While Davis was being taped up, one of the men told him that they did not want to hurt him and that they were just there for the money. Davis was taken into the manager’s office and he heard the same voice speak to him and direct him to open the safe. That was the only voice Davis heard throughout the robbery. At one point a stun gun was applied to Davis. A light was on in the office but Davis said that the remainder of the tavern was in darkness. Davis opened the safe as directed by pulling the doors open. He was then taken to a couch in the area near the restaurant and one of the robbers sat down with him and spoke to him. Davis believed the person who spoke to him was the same robber who had spoken to him a little earlier. Meanwhile, Pyne was brought into the office by one of the robbers and bound up. While this was happening Davis could hear tills being rattled and money moved. Davis described the Menzies Tavern as a rambling place over a number of levels. He had worked there for a few weeks before the robbery and said it was not an easy place to find one’s way about. Casey was familiar with the layout from his previous employment there.
[1]The witness, Davis, used imperial measure.
After the events described, Davis and Pyne were moved about by the two men into various parts of the tavern. At one point, Davis heard his mobile phone ring in the manager’s office. This telephone was stolen during the robbery and later found at Casey’s home. There was some difficulty on the part of the robbers in opening a safe. Davis was asked to provide the keys and eventually it was opened. Davis estimated in his evidence that there was about $22,600 in the safe at the time.
After being moved about Davis and Pyne were left alone. After a period that Davis believed to be five or ten minutes, neither of the robbers returned to check on them. Davis freed himself and raised the alarm.
After the execution of the robbery, the robbers were observed to leave the Menzies Tavern rapidly and drive off in a waiting white Ford car.
The police intercepted a number of telephone calls between Casey and Dent. On 18 August 1999, the police attended Casey at this home. Telephone records revealed that Casey telephoned Dent a few minutes after the police left his home. Later, when the police executed a search warrant at the home of Casey they found Davis’ mobile phone, two balaclavas, one blue and one black. Casey admitted the balaclavas were his. Some tape similar to that used in the robbery was also found. Later the police conducted a search of the applicant’s car. It matched the description of the vehicle used by the robbers to escape. Inside the applicant’s car the police found a large amount of wrapped coin identical to that stolen from the Menzies Tavern. A balaclava was also found inside the vehicle. Forensic tests conducted by the police on DNA found on the balaclava showed it to match DNA found on pieces of latex glove found at the scene of the robbery.
In a record of interview the applicant told the police that he acted under the duress of Casey and through fear of him. The applicant said that Casey, who had a history of violence, came to him a few days before the robbery and told the applicant that he had to be involved. As a result, the applicant said, he drove Casey and an unidentified male to the Menzies Tavern in a white Ford on 29 July 1999. He said that Casey and the other male went inside the tavern at about 7.00pm and he waited outside. He said that he made a phone call to Casey while they were inside. When Casey and the other man came out they had a duffle bag that contained liquor and cash.
Casey and Dent were presented for trial together. Eventually separate trials were ordered by the trial judge. The trial of Casey proceeded first. Casey was found guilty on one count of armed robbery and two counts of false imprisonment. After his conviction, Casey provided information to the police that led to charges being laid against a third offender, Christopher Neale Slater. He was arrested on 27 February 2003. Slater later assisted police in obtaining evidence with respect to Dent. Slater had pleaded guilty to the same three offences as alleged against Casey and Dent. On 25 March 2003 Slater was convicted and sentenced to three years’ imprisonment wholly suspended for three years. The trial of Dent proceeded after Casey on 17 November 2003. Dent was found guilty on all three counts. On 23 December 2003, the applicant, Dent, was convicted and sentenced. A fourth person, Peter Algie was charged with offences relating to the same armed robbery. He was eventually committed for trial in November 2003. His trial commenced on 21 September 2004. On 5 October he was acquitted of all three counts.
The applicant relied on three grounds:[2] that the judge erred in failing to give sufficient weight to the delay between the date of arrest and the date of trial (ground 3); that the judge erred in making findings contrary to the evidence (ground 7); and that the sentence was manifestly excessive (ground 1). It is convenient to consider the matters of delay and manifest excess together and before the ground relating to the evidence.
[2]Grounds 2, 4, 5 and 6 set out in the application for leave to appeal against sentence were abandoned.
It was submitted for the applicant that his age, being 32 at the time of sentence and 28 at the time of the offence, his lack of significant prior criminal history, his history of the establishment of a security business in order to support his wife and family and his good prospects for rehabilitation were matters that were not adequately reflected in the sentence which was manifestly excessive in all the circumstances. Emphasis was also placed in support of the argument of manifest excess on the delay between the perpetration of the offence and the trial and conviction, a period of two and a half years. In the course of submissions particular emphasis was placed upon the difficulties that the applicant suffered due to that delay. It was said that the uncertainty and anxiety the applicant suffered was not taken sufficiently into account in the sentences imposed.
Armed robbery carries a maximum term of imprisonment of 25 years and false imprisonment a term of ten years. Notwithstanding the personal circumstances of the applicant I regard it as significant that he targeted a venue that appeared to be an easy and vulnerable one in a highly professional and well organised way. The applicant devoted careful and detailed planning to the robbery and took a large amount of cash and other property valued at more than $25,000. Weapons were used and two employees were threatened and imprisoned and subjected to frightening circumstances. Whilst there was considerable delay between the date of the offence and the date of conviction through no fault of the applicant, that factor does not outweigh the seriousness of the robbery and his particular role. Of particular significance was the breach of trust on the part of the applicant in perpetrating these offences. As the provider of security services to the Menzies Tavern, the applicant enjoyed the benefit of the trust of those associated with the ownership and management of the tavern. The trust was breached in a serious way and, in my view, that breach amounted to a serious aggravating factor in all the circumstances. Unfortunately, the applicant has not demonstrated any remorse for the offences he committed. In all the circumstances the sentence on each count and the accumulation were moderate and reasonable. The sentences imposed were within the range and do not demonstrate any manifest excess.
The remaining ground was concerned with findings said to be contrary to the evidence. The trial judge in the sentence reached a finding of fact that the co-offender of the applicant, one of the robbers inside the tavern, held a hand gun during the robbery. Evidence as to the gun was given by Davis. Under cross-examination he conceded that the gun might have been an iron bar. Slater gave
evidence at the applicant’s trial and said that he was given a chair or table leg by Casey and told to make the object look like a gun. The judge also found that the applicant did not know exactly the type of weapon to be used by Casey in the robbery other than a stun gun. It is apparent from the evidence of Davis that he believed that he was confronted with a gun during the robbery. In the applicant’s trial[3] the Crown alleged that the robbers used a “firearm and offensive weapons namely an iron bar and a stun gun”. The fact that an object may have been made to look like a gun is of little significance in the context of this robbery. On the evidence, I consider that the finding was open to her Honour. In any event, even if the gun was a pretended weapon it would not lead me to conclude that a different sentence ought be imposed.
[3]Compared with that of Casey
I would dismiss the application.
BATT, J.A.:
I agree with the Chief Justice and Eames, J.A. Initially, I was concerned that ground 3, relating to delay in its aspect of causing uncertainty and anxiety, might have been made out. But, having regard to the way in which delay was relied upon before the sentencing judge, to her Honour’s observation as to the consequences of delay made during the plea hearing and to the reliance in this Court upon specific evidence only in support of this ground, I do not think it would be correct to uphold ground 3.
EAMES, J.A.:
I adopt the description of the events giving rise to these charges as set out in the judgment of the learned Chief Justice. Substantially for the reasons stated by her Honour, I agree that the application for leave to appeal against sentence ought be dismissed. I desire to add a couple of comments.
The sentencing remarks of the learned sentencing judge were well structured, comprehensive and, in my respectful opinion, well balanced. Such findings as were made by her Honour adverse to the interests of the applicant were carefully considered and entirely justified on the evidence. These were very serious instances of armed robbery and false imprisonment. The applicant committed the offences out of greed and by reason of a sense of grievance against the manager of Menzies Tavern for having terminated his contract to provide security services to that business.
In his trial the applicant ran a spurious defence of duress, which was exposed to be so, in part by virtue of a secret tape recording of his conversation with a co-offender while awaiting trial. Although he sought to downplay his involvement the applicant’s role was as one of the planners. While his co-offenders Casey and Slater took direct roles in entering the premises, Dent communicated with them from outside the building by means of a walkie-talkie and, by means of a carefully timed bogus phone call, lured one of the staff to a position where he could be confronted by the two accomplices inside the building.
Her Honour was satisfied that the applicant knew this would be an armed robbery. Complaint was made, however, that it was not open to her Honour to have concluded that Casey had carried a hand gun, because the evidence raised the possibility that he was holding a length of pipe which was disguised in a way to make it appear to be a gun. In my opinion, it was open on the evidence for the judge to have made the finding which she did. There was certainly a stun gun used in the robbery and when Dent was arrested his car was searched and police found a handgun together with a balaclava and a large amount of wrapped coins (approximately $450). It was not contended in the trial that that gun was used in the robbery, but no doubt her Honour would have had regard to the fact that persons who had been involved in the security industry might well have access to guns. It is unnecessary to reach any conclusion as to whether her Honour was in fact correct about there being a handgun used in the robbery. Whether it was actually a pipe or a gun, the victims were intended to believe it was a gun. In any event, her Honour gave the applicant the benefit of a finding that he did not know the precise weapon that Casey intended to use. I am not persuaded that her Honour’s treatment of this issue produced any sentencing error.
The offences, her Honour rightly held, had aggravating features of breach of trust, obvious pre-meditation, careful planning, the use of disguises and weapons, and violence was used to two victims who were bound and confined in frightening circumstances. The manager of the tavern although not present when these events occurred was nonetheless traumatised by anxiety of what might have been, had she been present. Her Honour quoted from the victim impact statements of the three victims which graphically testified to the ongoing trauma which innocent people can experience when they become victims of an armed robbery of this character. Her Honour was entitled to conclude, as she did, that the applicant had shown no remorse, at all.
There is no doubt that her Honour made allowance for the effect of delay between the time of the applicant’s arrest and his trial. The complaint raised was that she gave that factor insufficient weight. In support of the contention that the delay had caused anxiety and stress for him the applicant called in aid a report by a psychologist. Her Honour expressed reservations about the value of that report and the reliability of the picture it painted of the applicant as a man suffering anxiety and depression due to delay. When called to give evidence the witness conceded that such depression as he suffered might have been related to the applicant’s discovery that his private conversations with Slater had been secretly tape recorded. The complaints of anxiety and depression had also to be balanced against the evidence of the applicant as a cocky, threatening and duplicitous individual. I am not persuaded that her Honour gave insufficient weight to the factor of delay.
Her Honour carefully assessed all factors called in aid in mitigation of sentence. Those had to be weighed against the very serious character of this armed robbery. The sentences imposed were not manifestly excessive nor tainted by error.
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