R v PSA, PSB and PSC
[2006] VSC 91
•16 March 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT BALLARAT
CRIMINAL DIVISION
No. 1515 of 2005
| THE QUEEN |
| v |
| PSA PSB PSC |
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JUDGE: | TEAGUE J | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 24 August, 7 November 2005 | |
DATE OF SENTENCE: | 16 March 2006 | |
CASE MAY BE CITED AS: | R v PSA, PSB & PSC | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 91 | |
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Criminal Law Sentencing – Armed robbery – Conspiracy to commit armed robbery – Associated offences – Guns used to subdue armed security guards to be robbed of substantial amounts of money – Participants and/or potential participants as gunman or lookout – Fatal shooting in the course of one armed robbery – participation in conspiracies to commit further armed robberies after the fatal shooting – multiple mitigating factors leading to very substantial sentencing discounts – pleading guilty – providing evidence of their own involvement – providing co-operation as to the involvement of others – undertaking to give evidence against others.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr C. Hillman S.C. (24 August 2005) and Mr P. Coghlan Q.C. D.P.P (7 November 2005) | Office of Public Prosecutions |
| For the Accused PSA | Mr P. Dunn Q.C. | Tony Hargreaves & Partners |
| For the Accused PSB | Mr R. Richter Q.C. | Galbally & O’Bryan |
| For the Accused PSC | Mr J. Goetz | Geoffrey Tobin Pty |
HIS HONOUR:
PSA, PSB and PSC, you have each pleaded guilty to one or more offences. Those offences arise out of four events. Of those four events, two were armed robberies that were carried out. The other two were armed robberies that were planned but not carried out. The dates and places of the armed robberies that were carried out are 7 June 2004 at the Dandenong Plaza Shopping Centre, and 8 March 2005 at the Blackburn North Shopping Centre. In the course of the first armed robbery, $185,420 was taken. In the course of the second armed robbery, $162,000 was taken. Of much more significance than the money taken is that, in the course of the armed robbery carried out on 8 March 2005, Erwin Kastenberger, one of the security guards attending at the Blackburn North Shopping Centre, was shot dead. The dates and places of the armed robberies that were planned but not carried out are 24 May 2005 at the Waverley Gardens Shopping Centre, and 26 May 2005 at the Dandenong Plaza Shopping Centre.
The three of you were differently involved in the armed robberies or the plans for armed robberies. I will differentiate between you with reference to the count numbers in the presentment detailing the offences to which you have pleaded guilty. PSA, you have pleaded guilty to count 1, armed robbery, which arises out of the armed robbery carried out on 7 June 2004. PSB, you have pleaded guilty to counts 1, 2 and 6. Count 1, armed robbery, and Count 2, theft of a revolver, arise out of the armed robbery carried out on 7 June 2004. Count 6, conspiracy to commit armed robbery, arises out of the armed robbery planned, but not carried out, on 26 May 2005. PSC, you have pleaded guilty to counts 3, 4, 5 and 6. Count 3, armed robbery, arises out of the armed robbery carried out on 8 March 2005. Count 4, theft of a motor car and Counts 5 and 6, both conspiracy to commit armed robbery, arise out of the two armed robberies planned but not carried out on 24 and 26 May 2005. PSC, you have also pleaded guilty to, and are to be sentenced for, receiving $25,000 knowing it to be stolen property.
Before I turn in more detail to the circumstances of the offending, I record that I have earlier made certain orders that have an impact on the public reporting of this sentence. I made an order as to the closing of the court for the hearing of your pleas in mitigation. Those pleas were heard in part at Ballarat on 24 August 2005, and in part at Melbourne on 7 November 2005. I also made an order as to the suppression of the publication of certain matters. I did so to what I considered the minimum appropriate extent having regard to my assessment of the risk of endangerment to each one of you. As will be apparent from aspects of what follows, that considerable risk persists. It is likely to persist for some time into the future. As from the handing down of this sentence, that limitation on publication based on endangerment considerations will still continue to a limited extent. The laws as to contempt of court will continue to provide certain additional protection.
For reasons linked to that risk of endangerment, I will refer by initials once to three other men: A, B and C. After this I will refer to one or more of “the other three men”, without being more specific. Charges against all of the other three men arising out of one or more of the armed robberies or planned armed robberies have yet to be heard. Each of you will be given a significant discount in sentencing because of what you have done and have undertaken to do in the future. You have provided substantial co-operation with the police and prosecuting authorities. You have prepared one or more statements implicating one or more of the other three men. You have undertaken to give evidence against one or more of the other three men.
The links of each of you to each of the other three men are different. There is one close link between each of you and one of the other three men. I have no doubt that, without that close link, you would not be awaiting sentence together. I will summarily indicate some aspects of the links between each of you and that one of the other three men. PSC, your partner is the sister of PSB. PSB, your wife is the sister of the partner of PSA. The aunt of those two sisters was a former wife of one of the other three men, the close one. When the close one came recruiting for planned armed robberies, he had considerable information about each of you because of those links. He used that inside knowledge to his advantage and to your disadvantage.
Recruiting a lookout man, or recruiting a fellow gunman was just one part of the careful planning associated with each of the armed robberies. The modus operandi was broadly the same. The target was either a delivery to a bank in a shopping centre, or collection from such a bank, in each case of substantial money and by armed security guards. Such guards were likely to be carrying amounts of the order of $150,000 to $200,000. Time was spent checking out the usual routes driven over, and walked over, by the security guards. Guns were procured to be used to require the security guards to get on the ground when taken by surprise. One (or more) vehicle was stolen to be used to get away from the scene of the robbery. If considered necessary, such a vehicle might later be set on fire. Always a lookout man, and sometimes a supporting gunman, had to be recruited. Balaclavas and other old clothes to be used to avoid identification had to be procured. Radio scanners were procured to listen for police movements. Mobile telephones were procured to keep the gunmen in contact with the lookout man.
Before the armed robbery on 7 June 2004, you, PSB were recruited by the close one of the other three men to be a supporting gunman. The recruiting of you doubtless was prompted by the knowledge that you were a sporting shooter. You were the registered owner of a shotgun. You were talked into sawing off the end of the barrel, so that it could be used in an armed robbery. It was you, PSB who then recruited PSA to be the lookout man. PSA, as lookout man, you made it possible for the two gunmen to catch the security guards by surprise at the Dandenong Plaza Shopping Centre. You watched their movements. You alerted the two gunmen to the precise time to tackle the guards. To your acknowledged later shame, you, PSB, agreed to be, and you were, one of the two gunmen who got the guards to get on the ground, and then took the bag of money that they were carrying. The other gunman, the close one, with whom you were acting in concert, then stole the handgun of one of the two guards.
I turn to you, PSC. Before the armed robbery on 8 March 2005 at the Blackburn North Shopping Centre, you were recruited to be the lookout man. As lookout man, you made it possible for the two gunmen to catch the security guards by surprise. You watched their movements. You alerted the two gunmen to the precise time to tackle the guards. You engaged in a number of activities in the days before and after that armed robbery that brought you into contact to a greater or lesser degree with each of the other three men. I do not propose to list here those activities. I do say that your involvement in those activities does add to the seriousness of your role in the armed robbery. It also adds to the value of the evidence which you are capable of giving against each of the other three men.
There is one aspect of your involvement as lookout man that I do highlight. You were not physically present when Erwin Kastenberger was fatally shot. You were close by. You heard the noise of that shot. Yet within weeks, you were agreeing to take part in two further armed robberies. In the first, planned for 24 May, you agreed to take the role of lookout man again for the armed robbery. In the second, planned for 26 May, you agreed to take the role of gunman. Further, you recruited PSB to be the lookout man for the planned armed robbery on 26 May, where you had agreed to act as gunman. The modus operandi for the armed robberies planned for 24 and 26 May was as for the earlier two. They did not proceed as planned because the police were a step ahead.
I turn from focusing on you to focusing on your victims. I have read carefully the seven victim impact statements tendered to the court. Four are from members of the Kastenberger family. The four Kastenbergers are the wife, son, brother and sister-in-law of Erwin Kastenberger. Each of the four has prepared a statement which powerfully portrays the effects of what has been an especially traumatic death because of the closeness of the five, who are now four. There are understandable references to the senselessness of Erwin’s Kastenberger’s death as well as to the enormous pain and sense of loss suffered by each of the four. Of the other three victim impact statements, one is from Robert Crowe, the security guard who was with Erwin Kastenberger at the time that he was shot. The other two are from the two security guards, Jonathan Leak and Simon Livesley, from whom the money was taken at gunpoint at the Dandenong Plaza armed robbery in June 2004. The statements from the three security guards spell out the many adverse consequences for them, and for their families, of the trauma of being threatened with guns.
There are a number of matters in mitigation that I allow for that all three of you have in common. You have all pleaded guilty to these crimes at the earliest possible time. You have all provided extensive co-operation to the police. You have all undertaken to continue to co-operate with the police and prosecution authorities. You have all undertaken to give evidence as required against one or more of the other three men. Those undertakings are the more significant because none of you have significant prior convictions. That fact is itself a major mitigating factor. Because of that co-operation and those undertakings, the time that each of you will serve in prison must necessarily be served not in mainstream but in protection, with the added adverse consequences that follow. I allow for the circumstance that, at the time that you were recruited for the armed robberies, each of you was suffering from financial problems and a degree of depression. You have all shown remorse that I do assess as genuine, notwithstanding some reservations as to PSC and PSB linked to both of you becoming involved more than once. You have all got good rehabilitation prospects. You have all had a good work history. You have all got supportive friends and family. Another extremely important mitigating factor is that most of the evidence as to the nature of your own involvement in each of the first two armed robberies came only from your own mouths.
Sentencing the three of you is particularly difficult because of the need to balance more carefully than is usually the case principles as to general deterrence, as to the potentially substantial discounts for co-operation, and as to parity. Armed robberies targeting security guards protecting large amounts of money carry a significant risk of death. The community needs security guards. The community expects the courts to do what it can to protect them. Each of the completed armed robberies resulted in a large amount of money being taken for the self-enrichment of the takers. The prospects of getting money and avoiding detection are markedly increased with the sort of careful planning that was demonstrated in these instances. Planning as here involved, in each case, two men callously wielding guns, exposing guards to the risk of death. The careful planning here involved enlisting another man to act as the lookout for those wielding the guns. There is still a callousness attaching to the assessing of the time to make the critical call. The lookout does not feel and see and smell the terror of the guards and others nearby, as the gunmen do or might do. The lookout can be compensated with a lump sum rather that a share of the proceeds, which goes to the gunmen. He cannot be treated as unperceptive of the risk of death. But more to be deterred is any man who might opt to wield a gun - even an unloaded one.
I turn to the background of each of you. PSA, you are 29 years of age, having been born in October 1976. You provided to the psychologist, Mr Cummins details of your background that I now briefly summarise. When you were quite young, your parents separated. You were raised primarily by your mother to whom you remain very close. Your schooling was relatively normal and led to your completing Year 12 at Dandenong High School. You then completed a plumbing apprenticeship. After working as a plumber, you started doing casual work as a stevedore with a view to permanency. You have been in a long term relationship with your current partner. In the weeks leading up to 7 June 2004, there were several factors contributing to your suffering from depression, and being vulnerable. The main factor was that your mother had cancer and needed to be operated on. Your grandmother, for whom you had acted as a carer, had died the previous year. You were not working full time. You were living in a household with others who were affected by other misfortunes. That led to adverse financial consequences. There was led on the plea hearing impressive evidence, including many testimonials, as to your good qualities. You do have prior convictions arising from one court appearance in 2002. They were linked to your inappropriate choice at that time to get involved in illegal drug taking. You received a sentence then to be served by way of an intensive corrections order. Overall, I assess your rehabilitation prospects as good. In your police interview in May 2005, you were co-operative. You also showed regret at your involvement in the armed robbery eleven months earlier. That regret was most clearly evidenced by your not getting involved a second time.
PSB, you are 35 years of age, having been born in April 1970. The report of the psychologist Mr Joblin sets out more details of your background. In short your early years were spent in a stable family situation. Although of average intelligence, you left school during Year 9. Although you completed an apprenticeship as a carpenter, most of your working life has been spent concreting. For some time you did that work with your father. You had resumed that work after a period starting in 2003 when you were beset with depression and other problems, and were not working. You married your wife in 1999. There were later episodes of separation and reconciliation. You were living in a household with others who were affected by other misfortunes. For you, gambling has at times been a problem. That was the situation in 2004 and 2005. Too often you went to the casino to be away from other pressures, and in the vain hope of winning there enough money to relieve those pressures. In your police interview, you refer to some of those various factors that made you vulnerable to the approaches that were made to you to join in the plans to commit two armed robberies. Because of your interest in sporting shooting, you owned a shotgun. There were also relationship ups and downs, and work problems that affected you and the other members of the household. I accept that you deliberately chose not to load the shotgun that you carried during the June 2004 armed robbery. In the police interview, you showed signs of being torn by various emotions, including remorse at having given in to the pressures, and distress at having involved PSA. Nonetheless, some scepticism as to the level of remorse linked to June 2004 is warranted given that you chose to accept the offer to become involved again as a lookout man in May 2005. You have the support of your wife. On the plea, she gave evidence that I weigh in your favour. You have no prior convictions. I assess your rehabilitation prospects as good.
PSC, you are 41 years of age, having been born in March 1965. The report of Mr Joblin contains the detail of your background, which I now summarise. You are from a law-abiding and supportive family, the second of three children. At school and later you have shown talent as a sportsman. Your schooling was quite normal and led to your being proficient in technological areas. You chose to work in the field of automotive technology. You have been very successful in business at some times, but not others. There have been two particularly down periods. The first was after your former wife left you close to fifteen years ago. After that, you were depressed and suicidal. The situation emotionally improved with your establishing a relationship with your present partner. She and you have a daughter. She has been and remains supportive of you. On the plea, there were tendered a considerable number of testimonials. Many people from diverse sources have referred, in very favourable terms, to their experience with you as a family man, as a hard worker, and as a businessman. You have had three court appearances over the years, but they were for relatively minor matters, which resulted in the imposition of fines. Your lowest point appears to have been when your former wife left you. But you were at least partly able to get back to coping. You encountered another low point in 2004. You had been only partly successful in re-establishing a business. You took from PSB $25,000 that was part of what he had received for his role as gunman in the Dandenong Plaza armed robbery in June 2004. That $25,000 did not solve your then financial woes. It was at that low point that you were asked to be the lookout for the Blackburn North armed robbery.
With hindsight it is clear that it was poor judgment to agree to participate in armed robbery in March 2005. It is much harder again to understand why you would agree to participate in the events of May 2005, given that you were close by when Erwin Kastenberger was shot dead less than three months earlier. I have read several times what Mr Joblin has said in his report under the headings of “Offences” and “Assessment”. I have read that in conjunction with what you said in your police interviews and statement. It is difficult to accept that you could have real remorse for Erwin Kastenberger’s death when you chose to agree to take part in another armed robbery that necessarily carried a high risk of another death. Further, you stole a car to be used in the next planned armed robbery. Further, you agreed to carry a gun, albeit that it was not to be loaded. Mr Joblin has tried to explain in your favour why you made those choices. He concluded that you succumbed to a good degree of psychological coercion on the part of those who wanted you to assist them. You believed that you had no option but to comply with their requests. You knew their capacity. You were fearful for your family if you did not comply. I accept that, although not without reservations.
As to parity between the three of you, I have had no difficulty in setting PSA apart and at a significantly lower level. As between PSC and PSB, there are a number of common and a number of competing considerations. They include: age; level of involvement as gunman; level of involvement as lookout; circumstances of being recruited and recruiting; continuing involvement after the death of Erwin Kastenberger; value of past co-operation; and, potential value of undertakings. Ultimately, I have opted not to differentiate in the end result, although the ingredients are different.
As to the form of sentencing disposition, I have deliberated, at length, over what was said to me by the Director of Public Prosecutions in November. The Director then accepted that a suspended sentence was within the range of dispositions and spelt out his reasons. Those reasons are weighty. I also note that I have given significant weight to the giving of evidence by Senior Sergeant Ron Iddles of the Homicide Squad, as well as to what he said, and to what was later communicated to me with prior approval of all parties as to a December 2005 threat development. I have concluded that the most appropriate disposition is to impose sentences of periods of imprisonment and non-parole periods. For all three of you, all of the periods will be very much shorter than other sentencing considerations, particularly of general deterrence, would normally warrant. This is a very exceptional situation, because of all the mitigating factors, and most particularly, the undertakings to give evidence. The ultimate public interest is best served by my imposing what at first impression are, and likely to be seen as, very light sentences for four very serious, planned, professional crimes: two armed robberies, and two further planned armed robberies.
I have signed the body sample retention orders, there being no objection. I make the following declarations of pre-sentence detention and direct that they be entered in the court records: PSA 205 days, PSB 233 days and PSC 233 days.
I fix the following periods of imprisonment:
PSA, on Count 1, I sentence you to 3 years’ imprisonment. I fix a non-parole period of 9 months.
PSB, on Count 1, I sentence you to 5 years’ imprisonment. On Count 2, I sentence you to 3 months, all concurrent with the 5 years on Count 1. On Count 6, I sentence you to 2 years and 6 months, 1 year and 6 months concurrent with 5 years on Count 1. The effective head sentence is 6 years. I fix a non-parole period of 2 years.
PSC, on Count 3, I sentence you to 3 years’ imprisonment. On Count 4, I sentence you to 3 months, all concurrent with the 3 years on Count 3. In addition, I order the cancellation and disqualification of your driver’s licence for a period of 18 months, pursuant to s. 89(4) of the Sentencing Act 1991. On Count 5, I sentence you to 2 years, 1 year concurrent with the 3 years on Count 3. On Count 6, I sentence you to 4 years, 2 years concurrent with the 3 years on Count 3. On the summary offence, I sentence you to 3 months, all concurrent with the 3 years on Count 3. The effective head sentence is 6 years. I fix a non-parole period of 2 years.
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