R v Gardner and Coates - [2003] VSC 326

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1520 of 2002

THE QUEEN

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gardner and Coates

Details

AGLC: R v Gardner and Coates [2003] VSC 326
Case: [2003] VSC 326
Decision Date: 5 September 2003

CaseChat Overview and Summary

In the matter of R v Gardner and Coates, the defendants were involved in an armed robbery targeting bank guards who were restocking an automatic teller machine at a disused bank. The incident was further aggravated by the carrying and discharge of firearms. The principal offender, Gardner, pleaded guilty and demonstrated some remorse, whereas Coates, found guilty, maintained innocence and showed no remorse. Both offenders refused to disclose the whereabouts of the stolen moneys. The court was required to determine appropriate sentences that would address the need for general and specific deterrence, apply the totality principle, and consider the principles of parity and remorse.

The legal issues before the court encompassed the appropriate sentencing approach for the serious nature of the armed robbery, the impact of the carrying and discharge of firearms, the need for general and specific deterrence, the application of the totality principle, the relevance of the separate but concurrent nature of the theft offences, and the role of remorse and parity in sentencing. Additionally, the court had to decide on the non-parole periods considering the refusal of both offenders to disclose the whereabouts of the stolen moneys.

The court concluded that the armed robbery was a grave offence, requiring significant deterrence. Both the carrying and discharge of firearms added to the severity of the criminal conduct. Applying the totality principle, the court determined that the sentences for the various offences should be served concurrently to avoid excessive total effective sentences. Gardner, who pleaded guilty and showed some remorse, received a total effective sentence of eight years with a non-parole period of five years. Coates, who maintained innocence and showed no remorse, received a total effective sentence of seven years with a non-parole period of five years. The court found that the circumstances warranted a disparity in the proportions of head sentences to be served as non-parole periods, aligning with the principles of parity and the respective attitudes of the offenders.

The final orders were that Gardner be sentenced to eight years imprisonment with a non-parole period of five years, and Coates to seven years imprisonment with a non-parole period of five years. Both sentences were to be served concurrently.

Orders