R v Mark Thomas Garvin
[2009] ACTSC 87
•23 July 2009
R v MARK THOMAS GARVIN [2009] ACTSC 87 (23 July 2009)
DISPUTED FACTS HEARING
R v Jobson [1989] 2 Qd R 464
Law v Deed [1970] SASR 374
R v Olbrich (1999) 199 CLR 270
No. SCC 122 of 2007
Judge: Gray J
Supreme Court of the ACT
Date: 23 July 2009
IN THE SUPREME COURT OF THE )
) No. SCC 122 of 2007
AUSTRALIAN CAPITAL TERRITORY )
R
v
MARK THOMAS GARVIN
ORDER
Judge: Gray J
Date: 23 July 2009
Place: Canberra
THE COURT FINDS THAT:
The evidence given by Mr Larkin satisfies me beyond reasonable doubt that Mr Garvin entered the bakery premises and was involved in taking the computer and the safe from those premises at the time when Mr Fridemanis was menacing the bakery employee. I am satisfied beyond reasonable doubt that Mr Garvin was aware that Mr Fridemanis was dealing with the employee but I am not satisfied beyond reasonable doubt that he was aware that Mr Fridemanis was menacing the employee with a short metal object. I am also not satisfied beyond reasonable doubt that the robbery was a joint, pre-planned initiative between Mr Garvin and Mr Fridemanis. Rather, I am satisfied that Mr Fridemanis was the principal instigator of an enterprise of aggravated robbery in which Mr Garvin willingly assisted in taking the computer and safe from the premises. I propose to sentence Mr Garvin on that basis.
Mark Thomas Garvin has pleaded guilty to a charge that on 6 December 2006 he robbed Barry Williams and at the time of doing so was in the company of Kristaps Fridemanis. Apart from Mr Fridemanis and Mr Garvin, there were two other persons who have pleaded guilty to being co-offenders in the robbery. One was David Larkin and the other, Karn Webb. A fifth person, Peter Carbone, was charged with being an accessory after the fact to the robbery. At that time, Mr Williams, an employee of the Brumbys Bakery at Ainslie, was on the bakery premises. He was enticed out of the premises and menaced by Mr Fridemanis who held a piece of metal to his throat. One or more of the offenders then entered the bakery and took property from the premises comprising a computer and a safe containing over $5,000.00 in cash.
Mr Garvin disputes those aspects of the prosecution case which, if accepted, would show that he played a more significant role in the commission of the offence than is admitted by his plea of guilty.
The statement of facts tendered on the guilty plea entered by Mr Larkin formed the basis for the prosecution’s allegations as to Mr Garvin’s involvement in this matter and Mr Garvin gave evidence before me to support those allegations. That statement of facts sets out that:
During the evening of 5 December 2006 Mr Larkin was at the home of Mr Peter Carbone and Mr Karn Webb which is located at 80 Lewin Street in Lyneham.
Shortly after 10:00pm Mr Larkin and Mr Webb drove to Ainslie flats and collected Mr Kristaps Fridemanis and then returned to Mr Carbone’s home in Lyneham.
After the group returned they consumed alcohol until about 1:30am on 6 December 2006. At that time Mr Larkin, Mr Webb and Mr Fridemanis left Mr Carbone’s home and Mr Larkin drove them to the home of Mr Mark Garvin which is located in Ainslie. After they collected Mr Garvin, Mr Fridemanis directed Mr Larkin to drive to the Ainslie shops as Mr Fridemanis wanted to get more alcohol.
The group arrived at the Ainslie shops about 1:45am and Mr Larkin parked the vehicle on a side street near the shops not far from a small café/bar which at that time was closed. Mr Fridemanis stated that he wanted to go and look in the bar to get some alcohol.
Mr Fridemanis and Mr Garvin got out of the vehicle and walked towards the café/bar. A short time later they returned and told Mr Larkin and Mr Webb that the place was empty. He also told them that he had seen a light on in the bakery, which was also located in the Ainslie shops, and that he was going to ‘check it out’.
Mr Fridemanis asked Mr Larkin to drive the vehicle to an area behind the bakery. Mr Fridemanis and Mr Garvin walked to the back of the bakery and as they did so Mr Larkin, with Mr Webb as a passenger, drove the vehicle to an alley which was about 15 to 20 metres from the rear of the bakery entrance.
Mr Fridemanis and Mr Garvin returned to the vehicle and Mr Fridemanis stated that there was one guy in there and that he was going to put the power out in the bakery so that the person would come outside. Mr Fridemanis told them that he would hold him there and asked Mr Larkin to come in after about 5 minutes to help them. Mr Larkin agreed to the plan. Mr Fridemanis and Mr Garvin walked towards the back of the bakery.
At that time Mr Barry Williams was working alone in the bakery and after hearing a loud noise went outside to investigate. Mr Fridemanis, who at some point had armed himself with a knife, approached Mr Williams and held the knife close to Mr William’s throat. Mr Fridemanis grabbed Mr Williams on the shoulder and pushed him on the ground. Mr Fridemanis told Mr Williams that if he co-operated he would not get hurt and he asked Mr Williams a number of questions including whether there was a safe and whether he knew the combination. Whilst this was happening Mr Garvin entered the bakery.
At about this time Mr Larkin left the vehicle and walked towards the bakery. Mr Webb remained in the vehicle.
Mr Fridemanis told Mr Larkin to “get in there and help him” and at that point Mr Larkin walked into the bakery through the back door. Mr Garvin who was still inside the bakery said to Mr Larkin “Keep your head down there’s a camera” and “Look around for stuff”. Mr Larkin remained there for a few moments and said, “Nah, I’m going to wait in the car. Hurry up”.
Mr Larkin walked out the back door of the bakery and as he did so he saw Mr Fridemanis with Mr Williams who was still on the ground.
Mr Larkin returned to the vehicle and got into the driver’s seat. Mr Webb was still sitting in the vehicle.
Mr Larkin and Mr Webb sat in the car and a short time later Mr Garvin returned to the vehicle carrying a computer which had been removed from the bakery. Mr Webb got out of the vehicle and helped Mr Garvin put the computer in the boot. Mr Garvin said, “I will be back in a sec then we will go”.
Mr Garvin walked back to the bakery and a short time later returned to the vehicle carrying a safe which had also been removed from the bakery. Mr Fridemanis also returned to the vehicle and the safe was placed in the boot of the vehicle.
Mr Larkin drove Mr Fridemanis, Mr Garvin and Mr Webb back to he house in Lyneham.
The safe was removed from the vehicle and placed in the bathroom. Mr Fridemanis, Mr Garvin and Mr Carbone made attempts to open the safe and those attempts were ultimately successful. A number of ‘ANZ Bank’ bags were in the safe and those bags contained approximately $5095 in Australian currency.
These ‘ANZ Bank’ bags were removed and later that morning the monies in those bags were distributed between Mr Fridemanis, Mr Larkin, [Mr Webb], Mr Carbone and Mr Garvin.
No permission had been given for the removal of the safe and its contents or the computer from the bakery at Ainslie.
On 16 December 2006 police executed a search warrant at 80 Lewin St Lyneham. At the time the warrant was executed Mr Carbone, Mr Webb and Mr Larkin were present. At the conclusion of the search warrant Mr Larkin, Mr Carbone and Mr Webb were arrested and taken to the City Watch House.
Mr Larkin participated in a taped record of interview during which he made admissions as to his involvement in the aggravated robbery of the bakery at the Ainslie shops.
Mr Garvin gave evidence before me that disputed the involvement assigned to him in that statement of facts and in particular denied that he had entered the premises of the bakery at any stage. He said that he had assisted, at Mr Larkin’s request, in carrying the safe which he thought was an oven, from the doorway of the premises to the vehicle. He said that he did not appreciate that the item was a safe until after the vehicle left the scene.
He accepted that he was in the vehicle that was driven by Mr Larkin to the Ainslie Shops. He accepted also that Mr Fridemanis and Mr Webb were in that vehicle. His evidence was that he left the vehicle and went to a nearby alley to smoke cannabis and to drink beer by himself. He said that it was only when returning to the car that, by the light emanating from the bakery door, he saw Mr Fridemanis crouching down over what he said was a “white sack, or garbage bag or white blur”. He said he saw Mr Larkin come out of the door holding what he thought was an “oven”. He then said that he assisted Mr Larkin with the safe. He said that he only became aware that the “white blur” was the bakery employee when he was being driven away in the car.
The approach to be taken
The plea of guilty admits only the elements of the offence and does not admit any matter of aggravation or deny any matter of mitigation (R v Jobson [1989] 2 Qd R 464; Law v Deed [1970] SASR 374).
I am not to take facts into account in a way adverse to the accused unless those facts have been established beyond reasonable doubt. If there are circumstances to be taken into account in favour of the accused, those circumstances may be proved on the balance of probabilities (R v Olbrich (1999) 199 CLR 270 at 281).
The effect of the plea of guilty
The admitted presence of Mr Garvin at the scene of the robbery and his admitted assistance by carrying something obviously stolen, satisfies the element of theft in the charge to which he has pleaded guilty. It is more problematic as to whether, on what Mr Garvin said took place, he was aware that Mr Fridemanis was using force on someone else or that the stolen item was a safe.
The plea of guilty and the evidence given by Mr Garvin do not establish that Mr Garvin was a party to any foreknowledge or pre-planning of the robbery. His evidence also does not establish that at any stage he entered the bakery premises. For me to sentence Mr Garvin on the basis of these matters, I must be satisfied beyond reasonable doubt of them.
Mr Garvin’s evidence
The prosecution relies upon Mr Larkin’s evidence for that purpose. Mr Larkin has been sentenced by me for his part in the robbery. I substantially discounted his sentence by reason of his assistance to the authorities. I also provided for service of a portion of it by way of periodic detention which I would not have done, but for such promised assistance including the giving of evidence in this matter. In that regard, I need to be cautious as to my acceptance of his evidence and the weight to be given to it.
I have little doubt that Mr Larkin was seeking to minimise his role in this event. What I need to consider is whether he was doing so at Mr Garvin’s expense by lying about or exaggerating Mr Garvin’s involvement.
Mr Larkin’s initial statement in his record of interview with the police was put in evidence. The initial allegation of his involvement and his response to that allegation is set out in Q and A 50:
Q50I’ll put the allegation again to you that you were involved in an armed robbery at about two thirty am on Wednesday, the sixth of December two thousand and six at the Brumbys Bakery which is in Ainslie in the ACT. What can you tell me about that allegation?
A50Um, well, yeah, I was there and I know what happened pretty much from start to finish. Um, it started off me and Karn went to pick up Kris and Garvo, from Kris’s house, then he said he wanted to get alcohol and he said he knew a place in Ainslie, so we drove to the shops and him and Garvo went into, ah, is it like a bar or a tavern or something on the corner there that he said they had alcohol.
And so those two went in and, um, got – they ended up coming out with some meat and cheese and milk and stuff and then Kris said to come and see him. So, me, Kris, Garvo went and he said that there was one guy in the bakery and that he wanted, you know, to rob it. And he said – he showed Garvo where the power, um, box thingy was, and to flick and then it would stop the machinery or something and the guy would just come out.
And so, Garvo did that and I brought the car to the back of the place and then Kris called me and told me to hurry up and so I went, and Kris had the guy on the ground with a knife there and Garvo was inside and he ripped the computer off the wall and then, um, Kris told me to go in and have a look around. And so, I walked in and – as Garvo was moving with the thing he said, “Oh, there’s a camera, keep your head down”, and then, like, I don’t know what happened, I kind of freaked out a bit and left and sat in the car and waited for ‘em. They came out about ten minutes later with a safe and we drove back to Peter’s house.
Q51Okay. What happened when you got back to Peter’s house?
A51Um, well, what – I don’t know what they did, but I assumed they opened the safe and – they brought it up to the bathroom and I was, yeah, I didn’t have anything to do with that, I went to sleep. And yeah, in the morning the safe was cracked open and Kris and Garvo had left and Karn was asleep, so I don’t know who – who actually did do it. I don’t know who cracked the safe open, but – and I still to this day don’t know what happened to it.
Q52So, what was in the safe?
A52As far as I know, money.
Q53Okay. How much money?
A53I have no idea on the total.
Q54Okay. How much money did you get from it?
A54About two hundred and fifty bucks.
Q55Two fifty dollars?
A55Yeah.
Inconsistencies and implausibilities
Mr Edmonds, who appeared for Mr Garvin, submitted that there were a number of inconsistencies and implausibilities about what Mr Larkin said had taken place and that should preclude my acceptance of the evidence that Mr Larkin gave before me.
It was submitted that it was not consistent of Mr Larkin to have initially asserted to the police that he picked up “Kris and Garvo” from “Kris’s house”. This was because in his formal statement prepared by the police he said “I drove one of Peter’s [Carbone’s] Toyota Coronas to Garvo’s place in Ainslie where we then picked Garvo up”. His evidence before me was to the same effect. Emphasis was also placed on Mr Larkin’s answer at A64 of his interview with police:
A64That’s when – yeah, we picked them up from Kris’s house and, um, yeah, they both had had some and yeah, we just went to Ainslie Shops, parked down the side road and yeah, those two went in to the place on the end. They had bolt cutters too, so they obviously knew that they needed ‘em for the tavern or whatever, and yeah, they came back just with some milk and cheese and stuff and then that’s when Kris said to go to the bakery, so.
Whilst the answers to the police were inconsistent with Mr Larkin’s formal statement and the evidence before me that the place from which Mr Garvin was picked up was his own place, I do not regard this inconsistency as a deliberate attempt on Mr Larkin’s part to inculpate Mr Garvin unless I consider it reasonably possible that Mr Larkin was minimising his involvement at Mr Garvin’s expense. The statement to the police certainly has the effect of inculpating Mr Fridemanis as the principal protagonist. Mr Garvin’s evidence was that it was Mr Webb and Mr Larkin who went off with the bolt cutters. In light of Mr Fridemanis’ overall dominant role in the enterprise, I have less reason to accept Mr Garvin’s account.
An issue was raised as to whether Mr Larkin’s initial account to the police in A 50 about the power box and Mr Garvin’s role in respect of it could stand with the assertion that Mr Larkin made in his formal statement to the police in January 2008. In that statement he said:
Garvo said that they had looked in the bakery and that there was one guy in there. He said that he was going to put the power out in the bakery so that the person would come outside. He then said that Kris would hold him there and asked Karn and I to come up in about 5 minutes to help them. I agreed to the plan.
In his initial account to the police, Mr Larkin said:
That’s when we all – like we walked over and Kris is going, “Yeah, this is where the power thing is”, you know, “do this” – “we’ll pull it out, he’ll come out”. That’s when I’ll come out and then – yeah, I brought the car, um, up from the side street to the back of the alleyway where the bakery is and by the time I got out of the car and started walking, he’s already – I assumed Garvo had pulled the power or whatever, but the lights were still on. Um, and then Kris had the guy on the – lying on his face.
The accounts appear to be somewhat inconsistent as to whose idea it was to put out the lights but, in any event, they do not satisfy me beyond reasonable doubt that it was Mr Garvin’s plan. Before me, Mr Larkin neither gave evidence-in-chief on this aspect nor was he cross-examined about it. I do not regard his comment that “the lights were still on” as one that creates a degree of uncertainty as to what Mr Larkin said to the police on this aspect so as to adversely affect the reliability of his account. At about this time, Mr Larkin was concerned with shifting the car from a side street out of sight of the bakery to the back of the alleyway where the bakery was. He was not in a position to say whether the lights had or had not been switched off at some stage.
In his initial account to the police, Mr Larkin said at Q and A 87:
Q87Okay. There was a safe stolen from the bakery, how did that come to be taken?
A87That’s – the only thing I know about is that – like, ‘cause I went back to sit in the car. Karn was there and Kris and Garvo turned up with the safe, tried to put it in the boot, it wouldn’t fit, so it was sitting on the seat – back seat.
In his statement he said:
About a minute later Garvo returned to the car carrying a safe. He got to about 5 metres from the car and dropped the safe on the ground. I was going to get out of the car and help him with it but about that time Kris walked back from the bakery to the car. Kris and Garvo then picked the safe up, put it in the rear seat of the car and got in themselves. I then drove us away from the shops and returned directly to Peter’s house in Lewin Street.
In his evidence he said:
What happened next?---We were waiting for a bit longer and then we looked up the alleyway and Mark was carrying this big safe and it looked like he was struggling and kind of half dropped it on the ground and I don’t recall if something was said by him or not, but he turned around and went back to the bakery and me and Karn were going to get out and grab it and put it in the car but when we went to Mark and Kris appeared and grabbed it and put it in as they jumped in.
There is no inconsistency in these accounts. However, Mr Edmonds sought to refer to the statement of facts tendered on Mr Larkin’s sentencing in which it was said:
Mr Garvin walked back to the bakery and a short time later returned to the vehicle carrying a safe which had also been removed from the bakery. Mr Fridemanis also returned to the vehicle and the safe was placed in the boot of the vehicle.
In cross-examination, Mr Larkin was asked about the latter sentence:
Second last sentence [of the statement of facts], “Mr Fridemanis also returned to the vehicle and the safe was placed in the boot of the vehicle”?---That’s incorrect.
In the absence of Mr Larkin adopting the statement of facts, I do not regard that there is an inconsistency in Mr Larkin’s evidence as to how and where the safe was placed in the car.
I was then referred to the initial account given by Mr Larkin to the police as to his knowledge of the safe being opened. He initially maintained to the police that he was asleep and knew nothing about how it was opened. An angle grinder was at one stage used in the safe opening and it is implausible that he was not aware of it as he asserts in his initial account. In his statement given in January 2008 he said that he “could hear the grinder working and see sparks flying out across the bathroom”. His evidence before me was to a similar effect although it seems that he concedes that he went to sleep during this activity. I do not doubt that this evidence seeks to minimise Mr Larkin’s involvement but I do not take it as assisting me in my consideration of whether his evidence is overstating Mr Garvin’s involvement. Similarly, I was directed to his initial account to the police that he was given $250.00 as his share. He later said the money was divided into equal shares and that he got $800.00. I do not place great store on his initial minimisation of these matters so as to conclude that he is exaggerating Mr Garvin’s role.
The aspect of Mr Larkin’s evidence that I consider to be unaffected by the criticisms that I have outlined is this description of what took place when Mr Larkin saw Mr Fridemanis with the bakery employee on the ground:
What did you see when you saw them?---The guy who worked at Brumbys was lying on his stomach and it just sounded as if they were chatting to each other, you know, as anyone would talk to each other
and - - -
When you say the fellow was on the ground?---Yes.
You say he was on his stomach?---Lying on his stomach, yes.
And where was Mr Fridemanis?---Just standing up next to his body.
Did you hear any of the conversation that was taking place?---No.
Did you see Mr Fridemanis whether he had anything in his hand?---He had an object which, to me, looked like a knife. It was dark so I can’t be 100% sure, but I’m pretty sure it was - - -
Now, what did you do when you saw that?---By that time like Kris had turned around and seen me and said something of the like - something along the lines of “Get in there and help him”.
What did you understand that to mean?---Go in and help Mark.
At that point did you see where Mr Garvin was?---No.
Now when he said the words, “Get in there and help him”, what did you do?---I went in, the flyscreen door was shut.
When you say, “the flyscreen door”?---Of the back of the bakery.
All right, when you say, “shut” was it locked?---No.
And what did you do?---Opened it, I walked in and there was a couple of the baking equipment still running, still couldn’t see Mark, kept walking until I saw him in a little alcove to my right.
Right. Did you say something to him?---Not at first, no. I saw him and he was fiddling with wires on the computer and he made the comment of “keep your head down, there’s a camera”.
And when he said that, what did you do?---Well actually my first reaction was to look around and I saw the camera and then I kept my head down and then the next comment he made was, “Have a look around for stuff”.
And what did you understand that to mean?---To have a look if there’s anything worth taking.
And did you?---I did briefly. I took about four steps towards the front and it was all empty and then I kind of froze and left.
Before you left did you say something?---Yes, I said, “I’ll be in the car, hurry up”, something along those lines.
And when you say you “froze”, what do you mean?---I don’t know, like I’d never done something like that and it kind of got to me and I freaked out a bit.
And when you say, “got to me”, what do you mean by that?---I panicked, got scared, I guess, is the way to put it.
Now at that time can you recall what Mr Garvin was doing?---Still - I don’t know exactly what it was but some - trying to get the computer off the wall.
Now you’d indicated words to the effect of you were going back to the car. Did you tell that - say that to Mr Garvin?---Yes.
And what did you do then?---I left and went straight back to the car.
One aspect of this piece of evidence, which Mr Edmonds strongly criticised, related to Mr Larkin’s description that he “froze” and that he panicked and got scared. He did so because Mr Larkin committed an aggravated robbery only a few days after this incident. That seeming disparity was, to an extent, explained by Mr Larkin’s evidence in cross-examination that he had consumed, on that occasion, over 1.5 litres of Vodka and the finding of the sentencing Judge who sentenced him with respect to that offence that he was “clearly intoxicated”. I do not regard Mr Larkin’s explanation of this aspect as necessarily so implausible as to affect the credence that I place on the other evidence that he gave as to Mr Garvin being in the premises and actively engaged in the robbery.
Mr Garvin’s evidence
Mr Garvin gave evidence that he was picked up from his home in the early hours of the morning on 6 December 2006. The car was driven by Mr Larkin with Mr Webb in the front passenger seat and he and Mr Fridemanis in the back seat. They went to the Ainslie Shops and got out. He said that Mr Fridemanis went into bushes to have “a pee”. He further said that they returned to his home because he was asked to “get them some beer or alcohol” while Mr Fridemanis was “still in the bushes”. This does not appear credible as he had brought with him a six-pack of beer which he says he would not share with the others. His evidence was that he, Mr Larkin and Mr Webb returned to his place where he had a conversation with his father who told him not to take any beer or alcohol because it belonged to him. He said that they returned to Ainslie Shops and they all got out of the car and that Mr Webb produced bolt cutters and Mr Webb and Mr Larkin went to the rear of the shops. Mr Larkin and Mr Webb returned to the car with a milk crate full of milk and other items. He said that he had remained sitting in the car. He said that Mr Larkin, Mr Webb and Mr Fridemanis had a conversation, that he got out of the car and went towards the rear area of the bakery. The others also went towards it. However, he said that he went towards an alley in order to have a cannabis joint and some of the beer that he had brought with him whilst the others went towards the bakery. From the time that he got into the car, he said that he had drunk five bottles from the six-pack of beer that he had brought with him. He did not finish the last of the bottles. He tripped over “a garbage bin” when leaving the alley and then returned to the vicinity of the bakery where he saw Mr Fridemanis crouched down near the lit bakery door. He said that Mr Fridemanis appeared to be crouching down over what “looked like a white sack, or garbage bag or white blur”. He then saw Mr Larkin coming out of the bakery carrying a metal object which he took to be an oven. Mr Larkin asked for assistance and he helped Mr Larkin to take the item towards the general direction of the car. He then said that Mr Webb and he put the object in the boot. He said that it was at that stage that Mr Fridemanis came back and got into the car. After driving away there was a very loud beeping sound from the boot and he says that was when he first learnt that the object was a safe, not an oven.
Assessment of Mr Garvin’s evidence
There are a number of improbabilities related to Mr Garvin’s evidence. For example, I find it inexplicable as to why Mr Garvin should leave the car and go off for his smoke and drinks in an alleyway when the others went off in a different direction. I do not accept his explanation that he wanted to keep his drinking and smoking to himself because he did not want to share with the others. I am puzzled about the reference concerning the event where he said that Mr Larkin, Mr Webb and he returned to his house to seek more alcohol which was refused by his father. His father was not called to give evidence and I assume that his father’s evidence would not have assisted Mr Garvin in this regard. In cross-examination, Mr Larkin denied such an event took place. I can understand that Mr Garvin may wish to distance himself from any pre-planning concerning the robbery but this seems to be the implication from his story that Mr Fridemanis was left at the scene whilst he returned to his house with the others on what he said was the expectation of being able to get beer and alcohol.
As far as events at the bakery itself were concerned, it seems to me to be highly implausible for Mr Garvin to assert that he did not know that Mr Fridemanis had a man on the ground. That is because Mr Garvin said that at the time he saw Mr Fridemanis, he was no more than two metres from Mr Fridemanis who was then only one metre from the lit doorway. I also do not accept his assertion that he thought that the object that he assisted Mr Larkin with was an oven rather than a safe.
I have referred to Mr Larkin’s evidence concerning the amount that he obtained from the robbery and his evidence that the participants, other than Mr Carbone, shared it equally. In the end, Mr Larkin said that he received $800.00 as his share. That contradicts, in a material respect, the $400.00 that Mr Garvin said he received as his share. Again, that seems to be a deliberate attempt on Mr Garvin’s part to minimise his involvement.
Even allowing for the fact that Mr Garvin does not have a prior record, which I take into account in assessing his credibility, I do not accept his evidence as to the extent of his involvement in the robbery.
Conclusion
The evidence given by Mr Larkin satisfies me beyond reasonable doubt that Mr Garvin entered the bakery premises and was involved in taking the computer and the safe from those premises at the time when Mr Fridemanis was menacing the bakery employee. I am satisfied beyond reasonable doubt that Mr Garvin was aware that Mr Fridemanis was dealing with the employee but I am not satisfied beyond reasonable doubt that he was aware that Mr Fridemanis was menacing the employee with a short metal object. I am also not satisfied beyond reasonable doubt that the robbery was a joint, pre-planned initiative between Mr Garvin and Mr Fridemanis. Rather, I am satisfied that Mr Fridemanis was the principal instigator of an enterprise of aggravated robbery in which Mr Garvin willingly assisted in taking the computer and safe from the premises. I propose to sentence Mr Garvin on that basis.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate:
Date: 23 July 2009
Counsel for the prosecution: Mr C Todd
Solicitor for the prosecution: ACT Director of Public Prosecutions
Counsel for the accused: Mr P Edmonds
Solicitor for the accused: Paul Edmonds and Associates
Date of hearing: 2 July 2009
Date of judgment: 23 July 2009
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