R v Gardner and Coates
[2003] VSC 326
•5 September 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1520 of 2002
| THE QUEEN |
| v |
| BRIAN LINDSAY GARDNER and MICHAEL ALBERT COATES |
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JUDGE: | Nettle J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26, 27, 28, 29 and 30 May, 2, 3, 4, 5, 6, 10, 11, 12, 13, 16 and 17 June, 29 August 2003 | |
DATE OF SENTENCE: | 5 September 2003 | |
CASE MAY BE CITED AS: | R v Brian Lindsay Gardner and Michael Albert Coates | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 326 | First Revision 2 October 2003 |
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Criminal law – sentencing – armed robbery – reckless conduct endangering life - theft – need for general deterrence - serious offence of armed robbery of guards attempting to restock automatic teller machine (at disused bank) – offences aggravated by carrying and discharge of firearms - need for specific deterrence - previous periods of imprisonment apparently insufficient to deter these offences - totality principle - offence of reckless conduct adding to gravity of totality of criminal conduct, but sentences to be served concurrently to avoid excessive total effective sentences – offences of theft separate and discrete, but sentences to be served concurrently to avoid excessive total effective sentences - remorse – principal offender pleading guilty and demonstrating some degree of remorse – the second offender, maintaining innocence, found guilty but demonstrating no remorse - non parole periods – refusal of both offenders to disclose whereabouts of stolen moneys – non parole period - in the case of the principal offender, less than usual but greater than if whereabouts of stolen moneys had been disclosed – in the case of the other offender, different considerations applicable - parity principle - circumstances warranting disparity between offenders as to proportions of head sentences to be served as non parole periods – sentences - total effective sentences: for the principal offender, pleading guilty, eight years with a non parole period of five years; for the other offender, found guilty, seven years with a non parole period of five years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Michelle Williams | Solicitor for Public Prosecution |
| For Brian Lindsay Gardner For Michael Albert Coates | Mr John Desmond Mr Peter Morrissey | Victoria Legal Aid Slades & Parson |
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HIS HONOUR:
Brian Lindsay Gardner you have pleaded guilty, and Michael Albert Coates, you have been found guilty of armed robbery of $150,000, recklessly engaging in conduct that placed or may have placed another person in danger of death, and the theft of two motor cars. It is now for me to sentence you.
The facts
The facts of the offences were the subject of detailed examination during the trial. Accordingly, I restate here only what is necessary to place the sentences in context. Late in the year 2001 or possibly early in the year 2002, you planned together to rob armed security guards at a disused Commonwealth Bank at 327 Racecourse Road, Flemington. Your idea was to hold up the guards as they restocked the automatic teller machines with cash and to steal the money from them at gunpoint. In December 2001 Coates took a lease for a term of two years of a house at 5 Loch Street, Yarraville, and paid a security bond and two months rent in advance. Gardner acted as a referee for the purposes of the lease application. Coates moved in and took up residence in the rented house shortly before Christmas 2001 and in the weeks which followed Coates and Gardner together prepared for the robbery. As part of your preparations you stole two motor cars, a 1993 red Ford Falcon utility registration number DVC 574 and a 1988 white Holden Commodore station wagon registration number QVV 442 for use as getaway cars; you took furniture from the leased premises to place in the load area of the utility - to be used as cover while lying in wait for the security guards outside the bank, and to be used as fuel after the robbery in order to set the utility alight; and you acquired a single shot sawn-off shotgun, a six shot Smith & Wesson .38 revolver and a semi- automatic .22 rifle with a five round magazine capacity, together with ammunition for each weapon, for use in the course of the robbery.
On or before 25 January 2002 one or other of you parked the stolen Commodore station wagon in Smith Street, Kensington, close to the bank, in order that it could later be used as a getaway car. Then, early in the morning of 25 January 2002 you drove together in the stolen Ford utility to the bank, arriving there at about 9.00 am, where you parked the utility in one of the car parking spaces at the side of the road close to the front door of the bank. There you lay in the load area of the utility, concealed by the cupboards, in wait for the guards to arrive.
An Armaguard armoured van arrived at approximately 9.50 am and drew up outside the bank with the rear of the van adjacent to the from door of the bank. It was driven by Mr Mark Purcell, one of three guards assigned to the job, and it was manned by another two guards, the job supervisor, Ms Rebecca Mitchell, and the escort, Mr Mohammed Tabiaat. Ms Mitchell’s job as supervisor was to transfer cash from the van to the bank and load it into the automatic teller machines, and Mr Tabiaat’s job as escort was to act as look-out and otherwise to protect Ms Mitchell from harm.
The consoles of the automatic teller machines protrude through the front window wall of the bank so that the machines may be operated by customers in the street. The machines themselves, however, sit inside the bank, immediately behind the front window wall, in a small room called the bunker. That is the point from which the machines are designed to be serviced and restocked with cash. Consequently, before removing any cash from the van, Ms Mitchell and Mr Tabiaat together checked inside the bank, including the bunker room, to ensure that all was clear.
After satisfying themselves that all was clear, Mr Tabiaat took up post with his back to the front window wall of the bank and scanned the street for potential problems while Ms Mitchell collected the cash from the van. Then, just as Ms Mitchell drew near to the front door of the bank with the cash, Mr Tabiaat noticed both of you running towards him from the utility, yelling, and that one of you was carrying what appeared to him to be a long firearm. As was later established by the evidence, Brian Gardner was carrying the rifle and the revolver and Michael Coates had the sawn-off shotgun, and all three weapons were loaded.
Mr Tabiaat cried out urgently to Ms Mitchell to “get in” and she ran immediately into the bank and into the bunker just inside the front door of the bank. Mr Tabiaat followed close behind her. He managed to slam shut the bunker door but he was unable or he forgot to lock it. Gardner and Coates followed almost immediately in through the front door of the bank, Gardner first, close on the heels of Mr Tabiaat, yelling and firing at least one shot either into the floor of the bank or to the back of the empty bank chamber, and Coates next after pausing to scan the street.
Ms Mitchell, by now terrified, dropped the money cases onto the floor of the bunker and sought cover against the wall to one side of the automatic teller machine inside but near to the door of the bunker. She was armed with a .35 magnum Reuger revolver and she drew it ready for action. But as she deposed in evidence, she was so terrified at that stage that she could barely hold the weapon. Mr Tabiaat was also seriously frightened. He moved back rapidly from the bunker door to take cover behind the second automatic teller machine, further from the door. He too drew his weapon, which was a .38 Smith & Wesson revolver. But, as he said in evidence, he too was shaking so much with fear that the only way he could steady the weapon was by pressing his arm against his body and later by pressing the weapon against the automatic teller machine.
You, Brian Gardner and Michael Coates, yelled out through the closed door of the bunker to Mr Tabiaat and Ms Mitchell “to give us the fucking money” and “you are going to die, you are fucking going to die” and other similar threats. And you kept on yelling those things and several variations on that theme. But Mr Tabiaat and Ms Mitchell did not give you the money. They were too scared of being shot to move. They waited in fear for their lives, hoping that if they did not open the door you would leave.
But you did not leave. Instead you opened the unlocked bunker door from outside and there followed almost immediately an exchange of gun fire between Gardner and Mr Tabiaat and Ms Mitchell. Mr Tabiaat fired all six of the rounds in the chamber of his revolver and then reloaded with a speed loader and fired a seventh. Ms Mitchell fired four rounds from her revolver. Gardner fired his revolver four times, twice into the floor and twice in the direction of Mr Tabiaat. Fortunately he did not hit Mr Tabiaat or Ms Mitchell, but the situation could very well have been otherwise. One of Gardner’s rounds went so close to Mr Tabiaat as to hit the side of the machine behind which he was sheltering and the other hit the wall behind and above him and so close to him that he felt the heat of the bullet pass by.
As the gun fire continued one or other of you managed to reach far enough into the bunker to pull out one of the money cases from the floor of the bunker where Ms Mitchell had dropped it and one or other of you continued for some time to try to reach for the second money case, all the time continuing to yell “give us the fucking money” and “you are fucking going to die”, again with several variations on that theme. But Mr Tabiaat and Ms Mitchell did not give the money and such was the ferocity of fire to that point that both of you were in the end either unable or unwilling to persist. By the end of the fight, Gardner had been hit once in each arm and at that point both of you fled from the bank with the one money case which you had managed to steal. It contained $150,000.
From the door of the bank you both ran to the utility, one after the other. Coates drove and Gardner lay in the load area, seriously wounded and bleeding. You drove at speed to nearby Mulgrave Street and, once there, Gardner ran immediately from the utility up a lane which leads from Mulgrave Street to Smith Street, where the Commodore had been parked. Coates paused only long enough to set alight the utility with the furniture and the rifle and the shotgun in it and the revolver on the ground near to it and within the conflagration, and then started up the lane, at first forgetting to take the money with him. Then, realising that he had left the money behind, he returned to the burning utility and grabbed up the money case, by then smouldering, before continuing up the lane to Smith Street to join Gardner. From there Coates drove the Commodore home to the house at 5 Loch Street with Gardner wounded and bleeding in the passenger seat beside him.
Brian Gardner, you remained at 5 Loch Street until about 29 January 2002, plainly very ill from the wounds you had sustained, and then returned to your own home at Rye. At much the same time the Commodore was abandoned in a parking lot and an attempt was made to set it alight with accelerant and a lighted newspaper. On 6 February 2002 you were arrested near your home at Rye and after being admitted to hospital you were charged with the armed robbery of the $150,000, the theft of the two motor cars, the attempted murder of Mr Tabiaat and Ms Mitchell and reckless conduct endangering life. You made no attempt to deny that you were guilty of the armed robbery of the $150,000 or of reckless conduct which endangered the lives of Mr Tabiaat and Ms Mitchell or of the theft of the two vehicles. You admitted your involvement from the outset. But you denied that you were guilty of the attempted murder of Tabiaat or Mitchell and you maintained to the police and throughout the trial that the only weapon which you carried during the robbery was the sawn-off shotgun, which was not fired, and that it was the other robber, who you said was someone other than Coates, that carried the rifle and the revolver and fired all the shots.
Michael Coates, you were arrested on 10 February 2002 after presenting yourself for interview and, following a police investigation, you were charged with the same offences. But you denied that you were the second robber and you maintained throughout that you were not guilty of any offence.
The Crown conducted its case at trial on the basis that Gardner was the robber who carried and fired the rifle and the revolver, and that he was to be found guilty of attempted murder or reckless conduct endangering life on that and no other basis. Correspondingly, the Crown conducted its case against Coates on the basis that he was the robber who carried the shotgun, and hence did not fire any shots, and that he was to be found guilty of attempted murder or reckless conduct endangering life solely on the basis of the doctrine of common purpose or extended common purpose or as an aider and abettor.
Given the jury’s verdict that both of you were guilty of reckless conduct endangering the lives of Tabiaat and Mitchell, and that Coates was guilty of the theft of the cars and of armed robbery, I proceed upon the basis that the jury found that Gardner was the robber who carried the rifle and the revolver and fired the shots, and that Coates was guilty by reason of one of the doctrines of common purpose or as an aider and abettor. In the circumstances of this case it makes no difference to the sentence to be imposed upon Coates whether he was convicted under the doctrine of common purpose or as an aider and abettor[1], but it is significant that he did not fire any shots.[2]
[1]CPP v SJK [2002] VSCA 131 at [46] – [48]
[2]R v Ghareeb [2003] VSCA 111 at [36].
The nature and gravity of the offence
(i) Armed robbery
The maximum penalty for the offence of armed robbery is 25 years imprisonment, and the circumstances of this case are such as to place your offences of armed robbery towards the more serious end of the scale. Whereas the nature and gravity of conduct that may constitute armed robbery varies widely across the range of cases, yours was a premeditated, planned and heavily armed assault upon security guards in bank premises in a busy area of Flemington, in the course of which one of you fired a revolver and a rifle, in total not less than five times, and the other of you carried a loaded sawn–off shotgun in active support of the enterprise. The robbery was designed and it was executed in a fashion which placed Ms Mitchell and Mr Tabiaat in fear for their lives and so terrified them that even today they remain seriously traumatised by the experience. You ran an extreme risk of causing really serious injury to Ms Mitchell and Mr Tabiaat – it is only by the greatest of good fortune that at least one of them was not killed or seriously physically injured - and you created a significant risk of injury to innocent people close by in the street during the course of the gun battle and as you fled from the bank. You robbed the bank of $150,000, none of which has been recovered and for the loss of most of which neither of you has offered any excuse or recompense. As I assess your actions you acted in callous disregard of the safety and property of others and, to a significant extent, apparently for no better reason than to enrich yourselves at their expense.
(ii) Reckless conduct endangering life
By also convicting you of recklessly engaging in conduct which placed or may have placed another person in danger of death, the jury has found that each of you foresaw that it was probable that your conduct created a risk to the life of others and yet you continued regardless. That further offence attracts a maximum penalty of ten years imprisonment and in my opinion the facts of this case also put that further offence towards the serious end of the scale. Although not impossible, it is not easy to conceive of a more serious offence of reckless endangerment of life than deliberately and repeatedly firing a .38 revolver at close quarters in the direction of another human being in the heat and excitement of a violent bank robbery. I take account of the fact that some of the elements of these offences of reckless conduct endangering life are common to the offences of armed robbery. But that does not detract from the seriousness of the offences, even if it is to be reflected in the sentences to be imposed upon you[3].
[3]Pearce v The Queen (1998) 194 CLR 610 at p. 623; R v El Kotob (2003) 4 VR 546 at p. 548
(iii) Theft
The two counts of theft of which each of you have been convicted relate to the Ford utility and the Holden Commodore station wagon which you stole to use as get-away cars for the purposes of the robbery. Relatively speaking, the value of those vehicles was not great. Both cars appear to have been more than ten years old. Nevertheless, the thefts resulted in the destruction of the utility and severe damage to the station wagon and the loss of each of them to their respective owners. It is obvious from the condition in which you left both vehicles that you caused property damage running to thousands of dollars and that at the time you could not have cared less about it.
The maximum penalty for theft is ten years. In view of the relatively low value of the vehicles, I treat the seriousness of these thefts as lying towards the lower end of the range. But I do not regard them as insignificant. I consider that the way in which you took the vehicles and used and destroyed them demonstrated a contemptuous disregard for other peoples’ property which warrants the court’s denunciation.
Aggravating circumstances
The fact that the armed robbery was directed against a bank is a significant aggravating circumstance of that offence. It adds to the seriousness of the offence that it was so clearly planned and premeditated, high handed and audacious. It adds further to the seriousness of the offence that you chose to go armed with several loaded firearms. To carry a loaded firearm with the attendant danger of loss of life or serious injury is enough in itself to place the offence in the higher class of gravity. The fact that two of the weapons were fired, and one of them repeatedly, makes it an even graver offence. Of even more importance still is the effect which your crime has had upon the victims, Ms Mitchell and Mr Tabiaat[4]. Their evidence satisfies me beyond reasonable doubt that they were dramatically and adversely affected by your outrageous conduct and that they remain seriously traumatised by the incident. Ms Mitchell’s victim impact statement confirms that she is suffering profoundly.
[4]See the decisions analysed in Fox & Freiberg, Sentencing, 2nd Ed. at [12.502]
I treat the large size of the amount which you stole and your decision not to provide an explanation of the whereabouts of most of that money as still further aggravating circumstances. I do not overlook the fact that Gardner gave evidence at trial that the second robber was not Coates, and that the second robber kept all of the money except for $30,000, and that Gardner spent most of the $30,000 on a motorbike, since impounded by police. I accept that Gardner spent the best part of $30,000 on the bike and that that accounts for about $30,000 of the stolen money. But I do not accept that there was someone other than Coates who kept the rest of the money. The jury rejected that version of events, by convicting Coates, and so do I. I proceed upon the basis that one or other or both of you intend to keep the remaining $120,000 and to spend it when you get out of gaol, or that you have already spent it.
Discount for plea of guilty
Brian Lindsay Gardner you pleaded guilty at an early stage of the proceedings in effect to all of the offences of which you have been found guilty. Such a plea offered so early in the proceedings might be thought to warrant a substantial discount on the sentence to be imposed[5]. Matters here are complicated, however, by the fact that most of the stolen money has not been recovered and that no plausible explanation has been offered of its whereabouts. It seems to me that it is also significant that once you had been caught by the police it was obvious, because of your wounds, that you had been involved. A plea of guilty no doubt made sense when there was nowhere left to turn. It does not necessarily say as much about remorse or to my way of thinking a great deal else in favour of a substantial discount[6]. I am not that much impressed by a plea of guilty when it is evident that you intend to keep the money for yourself or to allow Coates to keep it.
[5]Sentencing Act 1991, s. 5(e)
[6]See R v RND [2002] VSCA 192 at [17] to [19], per Eames JA
Michael Albert Coates you did not plead guilty and you steadfastly maintained your innocence, as was your right. The sentence to be imposed upon you is in no sense to be increased because of the course which you chose to adopt. But, plainly, no question of discount arises in your case.
Personal circumstances
(i) Brian Lindsay Gardner
Brian Lindsay Gardner you were born on 13 October 1964 in Sydney. You have a criminal history extending back to 1989. In that year you were sentenced to 12 months imprisonment of charges of burglary, theft and going equipped to steal. The sentence was wholly suspended. You were convicted again in 1990 of charges of burglary and theft and sentenced to three years imprisonment. You were convicted again a month later of offences of attempted burglary, handling stolen goods and damaging property wilfully and sentenced to a further four months imprisonment. In 1996 you were convicted of seven counts of burglary and of a number of related offences and you were sentenced to a total of three years imprisonment. Apart from some road traffic offences, however, which I do not regard as particularly significant for present purposes, it appears that you did not offend again until the armed robbery of which you now stand convicted. Ironically, it represents a quantum leap in terms of seriousness from earlier offences. You have not before been convicted of any serious offence involving violence.
Psychological evidence has been tendered on your behalf that you were disadvantaged as a child by a dysfunctional family life, caused in part by the pathological violence of your father, frequent relocations, consequent prejudice to your education and the fact that economic and other circumstances resulted in you leaving school after completing only part of year 10 without any significant education or skills. It is also said that you have a long history of marijuana abuse, starting in your teens and developing to extreme dependence until relatively successful treatment during your last period of imprisonment. It is suggested that your drug dependence caused or contributed to the failure of your first marriage and to the severe emotional and financial hardship which led to a good deal of your previous criminal conduct.
As against that, however, it is put that during your last period of imprisonment you undertook substantially successful treatment for cannabis dependence and that your use of cannabis thereafter was so small as to be regarded as negligible. You have also remarried and have the love and support of a devoted wife, with whom you have had one child and share the care of the four other children of her previous relationships, and they are all very fond of you. You are assessed as being of above average intelligence, despite your absence of formal education, and it has been determined that you have a very good understanding of the principles and techniques of preventing a relapse into cannabis dependence. You have helped and remain keen to help other prisoners with drug dependence. Your chances of rehabilitation are said to be good.
You gave evidence at the trial that reason for the offence was that you had had a motor accident in which you damaged the motorbike of a member of a motorcyclists gang and that the gang were threatening you and your family unless you replaced the bike. It is said that you did not have the money with which to do so, because for among other reasons, you were unemployed and under extreme financial pressure. It is further reported that you have a deep and heartfelt empathy for your victims’ suffering and that you are profoundly ashamed of your involvement in these offences. Character references offered in support of your plea suggest that your contrition is real. Evidence has been given on the plea that since you were gaoled you have involved yourself in a number of courses to improve yourself and that you have qualified as a prison listener with particular abilities for assisting with youthful offenders.
Given the state of the evidence, I accept that your offence was in part motivated by the difficult financial circumstances in which you found yourself after the motor accident and that the concerns which you held for the security of your family and yourself may have conspired to lead you from the path of good conduct back into crime. I also accept that you are sorry for the harm that you have caused Ms Mitchell and Mr Tabiaat, that you are to some extent ashamed of having committed these offences, and that the sense of remorse that you have otherwise demonstrated since you were arrested is in some sense genuine. The evidence which has been given on your behalf on the plea also suggests that your chances of rehabilitation are now considerably better than at any previous time in your criminal history and that there are reasonable prospects that you could in future return to society and make a worthwhile contribution to it.
I should like to think that you were telling the truth when you swore that you got no more of the stolen moneys than the $30,000 which were spent on the motor bike. It would be significant if it were true, because most the $30,000 is likely to be recovered out of the proceeds of sale of the motor bike which I propose to order be forfeited. But I am unable to overlook the fact that you swore falsely that Coates was not involved and the remainder of the stolen money was taken by someone else. Whatever the reason may be, you have chosen not to disclose the whereabouts of the remainder of the money, and thus I am left in doubt as to what the truth may be. I am unable to sentence you on the basis that you received no more than $30,000.
(ii) Michael Albert Coates
Michael Albert Coates you were born on 29 May 1954 into a talented and respected family. Unlike Gardner you were afforded the opportunity of a first class secondary education and you matriculated and gained entry to La Trobe University. Thereafter, however, you appear for some time to have squandered the opportunities that had been afforded you. You did not graduate from university and after dropping out of tertiary education you led what seems to have been a fairly aimless and selfish existence, albeit working in a succession of random occupations. Things changed for you in the late 1980s after your father suffered a stroke, and you devoted yourself to caring for him, selflessly, effectively as his nurse. You were also able in that period to take up golf and it is said that you took to it with a passion and considerable success. But you were dealt a cruel blow in 1992 by injuries that you suffered in a motor accident. They were so severe as to incapacitate you from any longer working on a full time basis and significantly to reduce your ability to care for your father. You also lost the ability to play the game of golf which you so much loved and the pain and depression you experienced led to excessive consumption of alcohol and to some criminal conduct including assault occasioning serious injury.
To your credit you later endeavoured to help yourself by attempting to establish a removals business in Ferntree Gully and you persisted with that for some time. During that period you were befriended by the Gardner family and you established a relationship with Brian Gardner’s sister. But your physical disabilities made it impossible to continue for long with the removals business and after your mother remarried you moved to Rye to be near to her. Then in 1998 you suffered yet another blow when your mother was diagnosed as suffering from motor neurone disease and once more you took up the role of nurse, devoting yourself to her care. When your mother died in 1999 it is said that you were deeply emotionally affected.
You have a criminal record extending back to 1984, but most of it is of a relatively minor nature. Apart from traffic offences which I treat as being of very limited significance for present purposes, the only matters of concern are a conviction in 1996 for causing serious injury recklessly, for which you were sentenced to 20 months imprisonment (of which 10 months were suspended), and a conviction a month later on two counts of unlawful assault, for which you were sentenced to be imprisoned for a period of only seven days. It has also been explained on your behalf, and I accept, that the offence of causing serious injury arose essentially out of a drunken dispute with a friend and should not be regarded as anything in the nature of a criminal enterprise. Seemingly, you have never before been involved in an offence involving theft or dishonesty and apart from the two offences just mentioned, you have never before been involved in an offence involving physical violence. Your record suggests that the offences of which you have now been convicted are out of character and unlikely to be repeated.
As against that, however, you maintained throughout the trial that you were innocent, and that remains the case. Even now you do not accept responsibility for the offences of which the jury has found you guilty and, so far as I can see, you have not otherwise demonstrated any sense of remorse. I count in your favour that you played a significantly lesser role in the robbery than did Gardner, and that the offences of which you have now been convicted are of an altogether different order of seriousness to any of the criminal conduct in which you have previously been involved. Given your age and education I also assess your chances of rehabilitation as fair. It is unlikely, in my opinion, that you would again commit an offence of this kind. But I treat your refusal to acknowledge responsibility for the offences of which you have been convicted as something which casts doubt upon that, and I regard the absence of remorse as something which counts considerably against you.
Sentencing considerations
Offences of armed robbery of the kind of which you have both been convicted need to be deterred and therefore there is a need for significant punishment. The sentences to be imposed upon each of you need to reflect the Court’s denunciation of the kind of conduct in which you chose to engage and to provide general deterrence against the commission of similar offences by others. They also need be sufficient to deter you from offending again. One might have hoped that the periods of imprisonment imposed on each of you in respect of previous offences would have been enough to deter you from offending again. But to the contrary, each of you has now offended in ways which are far more serious than before. Therefore, while I accept that the chances of either of you re-offending in similar fashion are not great, I adjudge that there remains a need for some degree of specific deterrence. It is necessary to be sure that you both understand that it is not worth your while taking the chance of committing a further offence of this kind.
In Gardner’s case, I take into account your plea of guilty, conditioned though it may be by the circumstances to which I have already referred, and I also allow in your favour the difficulties and disadvantages from which you appear to have suffered in the past; the difficult financial circumstances in which you found yourself at the time of these offences; the concerns which you apparently felt for the security of yourself and your family; your chances of rehabilitation; and the punishment which you have in effect already suffered by reason of the wounds that you received in the course of the robbery. But, as I say, I am unable to put out of consideration that you have not seen fit to disclose the whereabouts of some $120,000 of the $150,000 that was stolen.
In Coates’ case, I take into account the fact that you did not fire any shots during the course of the robbery; the fact that in effect you have only one previous conviction involving violence, and that the circumstances of that offence suggest that it was the product of depression and the excessive consumption of alcohol rather than criminal enterprise; your age; and that but for your obstinate refusal to take responsibility for your criminal conduct, I should rate your chances of rehabilitation as good indeed. But I count against you that you do not take responsibility for the offences of which you have been convicted, and that you have not otherwise shown any remorse that I have been able to observe. It remains too that upon the evidence and the jury’s verdict you have benefited significantly from the robbery of which you have been found guilty and you intend to retain that benefit if you can.
Balancing as best as I am able the principles of sentencing laid down in the Sentencing Act, including denunciation, general and specific deterrence, Gardner’s plea of guilty, remorse, rehabilitation, and current sentencing practices, and bearing in mind all that I have said about the aggravating and mitigating circumstances of your respective offences as well as the requirements of sentencing parity, I have concluded that Brian Lindsay Gardner should be sentenced to a period of eight years imprisonment for the offence of armed robbery of which he has been convicted and that Michael Albert Coates should be sentenced to seven years imprisonment for the offence of armed robbery of which he has been convicted. I consider that Brian Lindsay Gardner should be sentenced to a period of two years of imprisonment for the offence of reckless conduct endangering life of which he has been convicted and that Michael Albert Coates should be sentenced to a period of one year imprisonment for the offence of reckless conduct endangering life of which he has been convicted. And I consider that each man should be sentenced to a period of one year of imprisonment for each of the offences of theft of which he has been convicted. I note that the sentences to be imposed for the offences of reckless conduct endangering life are towards the lower end of the scale. That is because those offences are comprised in part of elements common to the offences of armed robbery. You are not to be punished twice for what is in effect the same wrong doing[7].
[7]Pearce v The Queen, supra at [40] to [49]
But for Gardner’s plea of guilty, I should have thought that at least one year and possibly all of the sentence to be imposed in respect of the count of endangering life should be served cumulatively upon the sentence to be imposed in respect of the offence of armed robbery. That is so because, although I have allowed already for the commonality of elements involved in the two offences, in Gardner’s case the remaining elements added significantly to the gravity of the totality of the criminal conduct which was involved (and thus, other things being equal, the sentences for those offences should result in effective extra punishment). In the circumstances which obtain, however, I take the view that a total effective sentence of more than eight years would be excessive relative to the totality of your criminal conduct.
In Coates’ case, I consider that the lesser degree of culpability is of itself sufficient to warrant that the whole of the sentence of one year to be imposed in respect of the offence of conduct endangering life should be served concurrently with the sentence to be imposed upon for the offence of armed robbery.
In the case of each of you, I take the view that the sentences to be imposed for the offences of motor car theft should also be served concurrently with the sentences imposed in respect of the other offences. On one view of the matter they are discrete offences linked to the armed robbery only by the fortuitous circumstance that both vehicles were later used in the commission of and getaway from the robbery[8]. But in another sense they may be regarded as parts of one continuing episode[9] and, in any event, I am of the view that in Gardner’s case, anything more than eight years, and in Coates case, anything more than seven years, would be excessive[10].
[8]cf Attorney-General v Tichy (1982) 30 SASR 84 at pp. 92-3; Cornford v The Queen (1987) 15 FCR 215 at p. 225, per Jenkinson J
[9]The Queen v Kirk 21/7/83 per Starke J
[10]Mill v The Queen (1988) 166 CLR 59 at pp. 63-5; Fox and Freiberg, op cit. at [9.263]
The principles which guide the setting of a non parole period were reconsidered by the Court of Appeal in R v VZ[11]. In that case Callaway JA said that:
“I put to one side cases where a non-parole period is inappropriate. In other cases, it is apparent from the authorities to which I have just referred that a non-parole period cannot be fixed unthinkingly by some such method as taking two years, or one third or one quarter, off the head sentence. All the relevant factors have to be taken into account. They are many and varied. I mention only three of them, because they bear on this case. The first is that a non-parole period has a penal element: see, for example, Bugmy v. R. at p. 538 and R. v. Chan (1994) 76 A.Crim.R. 252 at p. 255. The second is that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period: see, for example, Power v. R. at p. 628 and Director of Public Prosecutions v. Bulfin (unreported, Court of Appeal, 17th April 1998). The third, which requires no citation of authority, is that a prisoner's prospects of rehabilitation are almost always a significant consideration. The present offences called for condign punishment and general deterrence was a relevant sentencing objective, but it was common ground, and his Honour found, that the applicant was unlikely to offend again. He added that no question of specific deterrence arose for consideration. The offences had first come to light in 1981 but the evidence at that stage was insufficient to warrant a prosecution. That may explain why the applicant had not re-offended but it did not detract objectively from his prospects of rehabilitation. Assuming that a head sentence of eight years' imprisonment was appropriate, I consider that a non-parole period of six-and-a-half years was manifestly excessive in all the circumstances of this case.”
[11][1998] VSC 32 at [15]
If the remainder of the stolen moneys had been returned or if an acceptable explanation had been given for the failure to return them, I should have been inclined to set a non parole period for each of you that was very much shorter than is usual. Gardner’s early plea of guilty and what I am persuaded is otherwise his genuine sense of remorse, Coates antecedents and his age and disabilities, and the prospects of rehabilitation for each of you would in my view have provided a satisfactory basis for a significantly shortened minimum sentence in each case. But given your failure to return the moneys or to provide a satisfactory explanation as to why they cannot be returned, I do not see the same degree of justification for a reduction over what might be regarded as customary. In Coates’ case the position is exacerbated by his resolute insistence that he is innocent and therefore by the absence of remorse evident in his failure to accept responsibility for the offences of which he has been convicted.
In the terms in which Callaway JA analysed the relevant principles of determining a non parole period, I am of opinion that the Gardner’s punishment would not be sufficient and that the general and specific deterrent effects of the sentence to be imposed upon you would be undermined if I were to set a non parole period for you of anything less than five years.
In Coates’ case, I think that the period should be the same. But the considerations are different. The head sentence to be imposed on you is less than that to be imposed upon Gardner, despite the fact that Gardner pleaded guilty to the offences, because of the lesser role which you played in the commission of the offences. But your continuing refusal to acknowledge responsibility, and thus what I perceive in your case to an absence of remorse, means that compared to Gardner a lesser difference between head and minimum sentence is all that is warranted. In my view your punishment would not be sufficient and the general and specific deterrent effect of the sentence to be imposed upon you would be undermined if I were to set a non parole period for you of anything less than five (5) years imprisonment.
Sentence
(i) Brian Lindsay Gardner
Brian Lindsay Gardner for the reasons which I have given I sentence you on the offence of armed robbery of which you have been convicted to imprisonment for a period of eight (8) years; I sentence you on the offence of reckless conduct endangering life of which you have been convicted to imprisonment for a period of two (2) years; and I sentence you on each of the offences of theft of a motor car of which you have been convicted to imprisonment for a period of one (1) year for each offence.
In accordance with s. 16(1) of the Sentencing Act 1991, those sentences shall be served concurrently.
In accordance with s. 11 of the Sentencing Act 1991, I fix in respect of the aggregate period of eight (8) years which you will be liable to serve under all the sentences imposed upon you, a period of five (5) years during which you will not be eligible to be released on parole.
I declare that the period to be reckoned as already served by Brian Lindsay Gardner under the sentence is [577] days inclusive of today’s date and I direct that there be noted in the Court’s records the fact that the declaration has been made and its details.
(ii) Michael Albert Coates
Michael Albert Coates, for the reasons which I have given I sentence you on the offence of armed robbery of which you have been convicted to imprisonment for a period of seven (7) years; I sentence you on the offence of reckless conduct endangering life of which you have been convicted, to imprisonment for a period of one (1) year; and I sentence you on each of the offences of theft of a motor car of which you have been convicted, to imprisonment for a period of one (1) year each offence.
In accordance with s. 16(1) of the Sentencing Act 1991, those sentences shall be served concurrently.
In accordance with s. 11 of the Sentencing Act 1991, I fix in respect of the aggregate period of seven years (7) which you will be liable to serve under all the sentences imposed upon you, a period of five (5) years during which you will not be eligible to be released on parole.
I declare that the period to be reckoned as already served by Michael Albert Coates under the sentence is [562] days inclusive of today’s date and I direct that there be noted in the Court’s records the fact that the declaration has been made and its details.
Further orders
In addition to the foregoing there will also be orders under s. 33(1) of the Confiscation Act 1997 for forfeiture of the motorbike; under s. 151 of the Firearms Act 1996 for forfeiture of the sawn-off shotgun, rifle and revolver which were used in the course of the armed robbery; under s. 28 of the Road Safety Act 1996 for cancellation for three (3) years of the Victorian drivers licences of both Brian Lindsay Gardner and Michael Albert Coates; and under s. 464ZFB of the Crimes Act 1958 for the retention of bodily samples in respect of both Brian Lindsay Gardner and Michael Albert Coates.
I decline to make any compensation order under s. 86 of the Sentencing Act 1991. Having regard to sub-s. 86(8) of that Act, and given the state of uncertainty which surrounds the whereabouts of the stolen moneys, apart from those spent on the motorbike, the financial circumstances of the prisoners and the values of the stolen cars, I consider that the subject of compensation would be better dealt with in appropriate civil proceedings.
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