R v Maston
[1998] VSC 221
•17 August 1998
SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION
Not Restricted
No. 1551 of 1998
THE QUEEN
v.
BRETT RONALD MASTON
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JUDGE: VINCENT, J. WHERE HELD: MELBOURNE DATE OF SENTENCE: 17 AUGUST 1998 MEDIA NEUTRAL CITATION:
[1998] VSC 221
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CATCHWORDS:
Armed Robbery - Plea of guilty - Undertaking to give evidence against co-offender - Prisoners (Interstate Transfer) Act 1983 (WA) and (Vic.) - Sentencing Act 1995 (WA) - Sentence Administration Act 1995 (WA).
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APPEARANCES: Counsel Solicitors For the Crown Mr. P. Coghlan Q.C. Office of Public Prosecutions For the Accused Mr. B. Bourke Bullards Solicitors
HIS HONOUR:
I have previously directed that there should be no publication of any part of the proceeding relating to Mr Maston until the completion of proceedings against the individual in relation to whom he has undertaken to give evidence.
Now, Mr Rapke, it has been stated in the court that Mr Maston will in due course be giving evidence in the proceeding against the co-perpetrator of the robbery. To this stage there has been no procedure adopted in relation to the manner of the giving of that undertaking. In a case which came before me last week the prisoner was actually called by his counsel and he stated on oath that he would swear up, effectively, to a statement he made to the police. I am not inclined to adopt that course in relation to Mr Maston. What I am inclined to do is to have Mr Maston from the dock formally give the undertaking that it has been anticipated he would provide. Do you find any problem with that?
(Discussion follows in relation to prisoner giving an undertaking that he will give
evidence against co-offender).
Brett Ronald Maston, you have pleaded guilty to two counts of armed robbery and you have admitted a number of prior convictions. It is now my responsibility to impose sentence upon you.
The background to and circumstances surrounding the commission of your offences have been outlined by Mr Coghlan, who appeared on behalf of the prosecution in the course of the proceeding, and need accordingly to be set out only relatively briefly at this stage.
The first count on the presentment relates to the armed robbery of two security guards as they were leaving the cash office of a Safeway store located in a shopping centre in Deer Park, an outer suburb of Melbourne. The robbery took place at about 9.55 a.m. and approximately $110,000 was taken. It occurred in these circumstances:
At about 9.50 a.m. a Brambles Armoured vehicle containing three security guards arrived outside the Safeway store. The vehicle was parked at the entrance to the premises and two of the guards, Dennis Fitzgibbon and Louise Smith, left the vehicle. Their task was to deliver a large quantity of coin for use at the supermarket and to collect the weekend takings. Each guard was armed with a .38 special Smith and Wesson six shot revolver.
They entered the premises with the coin and proceeded up a flight of stairs towards the cash office. Fitzgibbon entered the office alone, in accordance with standard security procedure, while Smith remained outside. Fitzgibbon delivered the coins and collected from a safe, which he unlocked, $101,323 in cash and assorted cheques to the value of $7403. The cash and cheques were placed in separate satchels which were in turn put into a black coloured unmarked courier bag.
Fitzgibbon departed the cash office with this bag and rejoined Smith, who was still outside. They proceeded back down the stairs into the check-out area of the store. At that stage Smith was confronted by you brandishing a handgun. You told Smith to get down on to the floor and that she would not be hurt. She complied with this order and placed herself face down on the floor.
Your companion was then observed approaching Fitzgibbon brandishing a sawn-off shotgun. He directed Fitzgibbon to get down. Fitzgibbon complied with this order and also lay face down on the floor behind Smith. Your companion then picked up the courier bag from the floor and asked Fitzgibbon, "Is the money in the bag? Is it all there?" Fitzgibbon responded to him, "You've got the lot." Your companion then took a revolver from Fitzgibbon's holster.
Whilst he was still with Fitzgibbon you stood guard over Smith pointing the handgun at her. You yelled to your companion, "Let's go." The two of you then ran from the store and made good your escape.
The second robbery was committed at the Lower Plenty Hotel, Lower Plenty, which is also an outer suburban area of the city. On this occasion an armed guard security van arrived at the hotel at about 2.10 p.m. Security officers McGaffin and Kis then entered the premises where they collected the weekend takings. On their return to the van they were approached by two armed men. It appears that Kis was ordered to lie on the ground and that at the same time he heard a shot. Witnesses have stated that one of the armed men shot MrGaffin at point blank range in the face. Both security officers had their .38 calibre revolvers stolen from them.
You were one of those two men and initially you were charged with the murder of McGaffin. However, Mr Coghlan has informed me that the prosecution have formed the view that, "It is absolutely clear that it was not the prisoner who shot McGaffin." In consequence, a nolle prosequi has been entered in relation to that charge.
As has already been indicated this morning, you have made a statement to the police about your role in the robbery, and specifically concerning the identity of the person who you state was your co-offender and the one who shot McGaffin. You have acknowledged responsibility for your offences at a relatively early stage and you have undertaken to give evidence in accordance with your police statement which you assert contains the truth. These factors must assume considerable weight in the determination of an appropriate sentence in your case.
In particular, it is apparent that the evidence which you have undertaken to provide with respect to the death of Mr McGaffin is likely to be of considerable importance in the forthcoming prosecution of the alleged perpetrator. I am aware that once it becomes known in the prison system that you have adopted this stance, if indeed it is not already widely known, it would be, for practical purposes, impossible for you to continue in the mainstream prison population. This situation has already been recognized by the management of Barwon Prison where you are presently incarcerated and you have been kept in a high security protection unit. Whether you serve your sentences here or in Western Australia, from which you have been transferred in order that these matters could be dealt with, there can be little doubt that you will incur greater hardship and some physical danger by reason of your cooperation with the authorities.
I do not think that it is necessary to do more than advert in this context to the authorities in which the courts have accepted that a considerable reduction in the sentence which would otherwise be imposed upon an offender may be appropriate by reason of that person's preparedness to cooperate with investigative or prosecution authorities. In your case, not only is the evidence which you have undertaken to provide likely to be of considerable importance, as I have mentioned, but the substantial period of imprisonment which you will have to serve in any event is likely to be subject to the difficulties to which I have referred.
You are already serving an effective total sentence of 14 years and six months imposed in Western Australia for a series of offences which you committed there. Inquiries which, with the consent of your counsel and the prosecutor, I undertook to ascertain the relevant periods and dates reveal that you are eligible for parole in Western Australia on 17 September 2003. That parole, if granted, would, under the law of that State, as I understand it, expire two years later.
The offences with which I am concerned must be regarded very seriously. Each of them was carried out in a professional fashion involving the presentation of firearms and a preparedness to confront armed security guards. Your counsel has submitted that at the time that you engaged in this behaviour you were to a significant extent out of control as a consequence of a developing problem of drug abuse. There is some support for this claim in your criminal history, that prior to what appears to have been a criminal rampage across the country gives little indication that you would engage in activities of such seriousness or so frequently. Accordingly, I am prepared to proceed on that basis.
There are some prospects for your successful rehabilitation which must also be taken into account.
Normally the offences which you have committed would carry far more substantial sentences than those which I propose to impose upon you. In making this comment, I am mindful not only of the nature and the consequences of this type of behaviour, but also the personal impact upon individuals who are confronted by or exposed to the presence of violent armed criminals behaving in a desperate fashion. Clearly the courts must endeavour, through the sentences that they impose, to deter those who may be prepared to embark upon conduct of this kind, and also equally clearly persons who are engaged in the security industry should not be exposed to the kind of terrible assault in which you engaged.
You have expressed a desire to be returned to Western Australia to serve your sentence for reasons of personal safety. The disposition at which I have arrived will produce that effect. As I understand the interaction of the provisions of the Prisoners Interstate Transfer Act, Acts of this State and Western Australia which have brought you here, and the relevant parts of the Western Australian Sentencing Act 1995 and Sentence Administration Act of 1995, and I should indicate that those various pieces of legislation are somewhat difficult to interpret in a number of respects - in any event, I have determined that you are sentenced to serve 6 years imprisonment on Count 1 and 6 years imprisonment on Count 2, four and a half years of which are to be served concurrently with the sentence imposed on Count 1. That creates an effective sentence of seven and a half years.
I fix no minimum term on that sentence in the particular circumstances of this matter. Its practical effect will be to extend your period of imprisonment for close to two years beyond the point for which you would have been eligible for parole in Western Australia.
I declare that the period of 279 days which you have undergone whilst in this State be reckoned as having been served under the sentence hereby imposed and I direct that the giving of an undertaking by you with respect to the provision of assistance to the authorities and to which I have had regard in the determination of the sentence is to be endorsed on the records of the court.
Before I go, I did, as I indicated to counsel the other day in this matter, endeavour to secure the documentation relating to the transfer, which I understand is not always easily secureable. I did so, and my Associate has it if counsel wish to peruse it.
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