R v Weyermann, Chade and Powell, Jonathan

[2010] NSWDC 92

CITATION:	R v Weyermann, Chade and Powell, Jonathan [2010] NSWDC 92
JUDGMENT DATE:	1 April 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Chade Samuel Weyermann (2009/00009686): Robbery while armed with weapon: Sentence 2 years minimum term, balance of term of 2 years and 6 months Jonathan Alan Powell (2009/00137818): Robbery while armed with dangerous weapon : Sentenced 2 years imprisonment, suspended conditional upon entering s12 good behaviour bond.
CATCHWORDS:	Criminal Law - Sentence - Robery armed with dangerous weapon - Dubbo Railway Club - $41,000 - armed robber recently released to parole - robber late recruited to joint venture - substantial planning by getaway driver and co-offender - major planner and leader merges with other patrons as spectator - danger to the public high - use of shortened farm and balaclava - money recovered - 3 victims - subjective circumstances of each offender reviewed.
LEGISLATION CITED:	Crimes Act 1900 Crime (Sentencing and Procdure) Act Firearms Act 1996
CASES CITED:	R v Cuthbert (1967) 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Gladue [1999] 1SCR 688 [80]
PARTIES:	Regina Chade Samuel Weyermann Jonathan Alan Powell
FILE NUMBER(S):	2009/00009686; 2009/00137818; 2008/14406
COUNSEL:	Crown: L Shaw, Crown Prosecutor Defence for Weyermann: K Robinson
SOLICITORS:	Defence for Powell: Mr K Hockey

JUDGMENT
[Please note some sensitive material has been removed from this report of the remarks on sentence.]
1. Each of Chade Sam Weyermann and Jonathan Powell has pleaded guilty to robbing the Dubbo Railway Club, three days before Christmas, of $40,929 whilst being armed with a dangerous weapon, namely a .22 calibre pump action rifle. The third man, Grant Bartley, alleged by the Crown to be the mastermind, director and participant, has a contested hearing scheduled some time after today. ... Today, Weyermann and Powell are each to be held accountable for their part in the Dubbo Railway Club robbery.

2. As sentencing judge, it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence before this Court committed by these offenders targeting that railway club in the community of Dubbo; see Gladue v The Queen [1999] 1SCR 688 [80]. My initial task requires an assessment of the objective criminality of this offence before the court. I will also need to have regard to matters personal to each of the offenders, called subjective matters. The starting point for these assessments requires me to make findings of fact from evidence before the Court, relating to both the offence and to the offenders.

3. My fact finding task has been circumscribed, in that the parties have tendered an agreed set of facts to which I will shortly return. It is sufficient at this point that I remind the Court, a judge, is not a party to any agreed set of facts between the parties. The tender of an agreed set of facts does not relieve the judge from a fact-finding responsibility; it simply limits the material from which facts may be found. To the extent, if it be the case, that the facts as agreed do not reflect the actual events that occurred, it must be remembered that a court can only find facts from evidence placed before it.

4. Each offender’s rehabilitation prospects will have to be assessed, even if looking through a glass darkly. Before any sentence can be made there are technical questions relating to deterrence, discounts, whether special circumstances are to be found, back-up charges brought from the Local Court to this Court and finally, of course, the ultimate terms of imprisonment or other penalties to be imposed. None of these can be commenced until the primary facts are determined.

5. What weight needs to be given to all of that, against the imperative that all sentencing should have as its primary focus the protection of the community, also needs to be determined; see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

Facts

6. Grant Bartley, aged forty-two at the time of the offence, met Samuel Chad Weyermann, aged twenty-two, the night before the offence. There is some suggestion that these two may have known each other prior to that date. Jonathan Powell, aged twenty, had known Bartley for a period dating from a time that they had both worked at the abattoirs.

7. Powell is aged twenty- two; twenty years younger than Bartley. Bartley and Powell were certainly acquaintances of some standing. Both Bartley and Powell were experienced in the use of firearms. Powell had gained much of his experience from school cadets.

Preparation

8. This material applies to Powell only. A week before the robbery Powell saw Bartley with a .32 or .38 calibre pistol small enough to fit into the palm of a man’s hand. It was old and rusty, had a small magazine which was inserted, or to be inserted as the case may be, into the pistol’s grip. The loading mechanism was mounted towards the rear of the barrel which was pulled back to raise a cartridge into the breach chamber. It was described as an automatic but more likely was a semi-automatic.

9. Early on Sunday 21 December 2008, the day before the robbery, Powell drove to Lithgow to collect Bartley from a railway station and drive him back to Dubbo. On the return journey Bartley raised a proposition that he and Powell commit a robbery of some form on a club as he, Bartley, was of the view that the takings from the various Christmas parties being held at that time in Dubbo would make such a robbery very profitable.

10. It was decided that the enterprise would be extended to include a third person, namely, Weyermann, who had recently been released from prison on parole in relation to a sentence imposed for a series of offences on 4 December 2008 eighteen days prior. This evidence is tendered against Powell only. Sam Weyermann and Powell had been friends, indeed Powell regarded Weyermann as his best friend; (that is actually in evidence in any event in the hearings, that can stay). It was Powell who put forward Weyermann’s name to Bartley, the alleged mastermind.

11. Bartley suggested Powell call Weyermann, drive to Mudgee to collect Weyermann and bring Weyermann back. Powell did drive to Mudgee to collect Weyermann and told him of the plan to do a robbery on the way back to Dubbo. That suggests to me that Weyermann was not aware of the robbery until after he had entered the motor vehicle.

12. After obtaining some food for Weyermann, Powell and Weyermann drove to where Bartley was staying and collected him. This again is taken from evidence tendered only against Powell. Initially it was contemplated the robbery would be done on the Sunday night. From Bartley’s point of view two recreational clubs were under consideration. The three offenders drove to each of the potential targets, namely, the Dubbo City Bowling Club and the Dubbo Railway Bowling Club to ascertain whether the robbery could occur on that evening.

13. On both occasions Bartley entered the premises alone with a pistol down his pants and returned to the other two advising them there were too many people and too much security in both establishments to conduct a robbery that evening. It was decided it would be better to conduct the robbery the following morning.

14. The three then drove to Bartley’s residence. Bartley went into the house there and obtained a shortened firearm, ammunition and a pair of overalls to be worn by Weyermann during the robbery now planned for the following day.

15. Powell and Weyermann left Bartley at his residence and returned to Powell’s home where they stayed the night. In the course of that night Powell cleaned the shortened firearm whilst Weyermann played an X Box video game and watched television. Powell had been requested to show Weyermann how to use this weapon but there is no evidence that that occurred. Powell was also to clean the weapon and metal studs on the overalls so that there would be no fingerprints relating to Bartley on either.

16. The following morning Powell, with Weyermann, drove to Bartley’s residence where they waited outside until he came to the car at about 8.30. All then drove to Centrelink in the centre of Dubbo. Whilst there Powell and Weyermann went to Coles where Weyermann purchased food. The three men met up, drove to Riverdale Shopping Centre, Bartley purchased a long neck of beer and Powell walked across the street from the shopping centre to a camping shop where he purchased a black balaclava to be worn by Weyermann during the robbery. In a later interview with police Powell asserts that purchase was made at the direction of Bartley.

The Robbery

17. Powell drove Weyermann and Bartley to a spot near the Dubbo Railway Bowling Club. Powell (as said) told the other two offenders he was going into the club to check it out and would give the green light if the situation was good for a robbery to take place. CCTV footage shows Bartley first entering the club at 10.21am. Powell claims that Bartley had a pistol down his pants. CCTV footage shows Powell entering the club and speaking with Bartley on two occasions prior to the robbery taking place.

18. In a later interview Powell asserts that he was telling Bartley he wanted no part in the robbery. About 11.16 Bartley left the club, walked to where Powell had parked the car and spoke to Powell and Weyermann. Bartley re-entered the club at 11.32. Three minutes later at 11.35 Weyermann enters the club, dressed in khaki overalls and a balaclava carrying a loaded shortened firearm. That firearm was of course the one that had been given to them by Bartley the day before. At the time Weyermann entered the club, the fifty-eight-year old secretary manager of it, Douglas Burke, was in his office situate near the front entrance of the club. Powell had prepared the rifle as I earlier mentioned and had overseen the loading of it, in fact I understand he did load it with the ammunition. Weyermann approached the manager saying, “Money, money”, and pointing the loaded shortened firearm towards Burke’s torso. Burke sensibly told Weyermann the money was in the safe and led him to the safe which was down near the bar area. As Burke led Weyermann towards the safe two other workers at the club, Steve Chapman and Cindy Kelly, who were working in that area, assisted Burke load or give to Weyermann a blue banking bag containing nearly $41,000 in cash and cheques. Weyermann then ran from the club outside and was driven from the scene by Powell. CCTV footage shows Weyermann left the club at 11.37am. Bartley was present at the club during the robbery. Powell rapidly drove from the club. he stopped at a nature reserve where the weapon used in the robbery was thrown into the river. Whilst there Powell phoned Bartley leaving a message for him, a voice message. Powell then drove Weyermann to another location where shoes worn by Weyermann during the robbery and the blue bag, absent the money, were hidden in a table drain. Powell then drove to his home where the stolen money, khaki overalls and balaclava were hidden. Once at Powell’s home Bartley rang Powell and said, “Don’t fuck with my money.” Powell was also told to hide Weyermann, and Bartley indicated that he would be catching up with Powell later.

Police Investigation

19. Silent security alarms had been activated during the robbery. Police attended the Railway Bowling Club within a very short time frame and obtained description of the robber. A magazine of ammunition was located at the scene. It had fallen somehow from the weapon. A description of the robber was broadcast to other police. On the basis of the description given police came to a view that Sam Weyermann was the person who was the robber.

20. Powell’s parents were at home when Powell and Weyermann arrived and observed that Powell appeared to be in an extremely distressed state. Powell told his father that he had been threatened by an unknown man and made to drive to Brocklehurst. Powell’s father contacted the Dubbo Police Station and informed them of what he had been told by his son. He was advised that police would attend shortly.

21. When Powell’s father contacted the police Weyermann was already their prime suspect for the robbery and they were able to ascertain that Powell and Weyermann were associates. Police phoned the Powell residence back and spoke to Powell’s father Jonathon who reiterated the story of his son having been threatened by an unknown man and made to drive to Brocklehurst. Police attended Powell’s residence within a short time.

22. There Powell was observed to be in a distressed state. Weyermann was also seen and identified. What was noticed was that Weyermann appeared to have been trying to alter his appearance by cutting his hair. Powell was spoken to away from Weyermann and then nominated Weyermann as having been involved in the robbery as well as Grant Bartley. On the basis of that information Weyermann was then arrested then conveyed to the Dubbo Police Station.

23. Powell’s premises were searched and a bag containing the stolen money, overalls and balaclava were located by Jonathon Powell who had been assisting in the search. All of the stolen money was retrieved. Powell went with police and showed them where the gun had been thrown in the river. It was retrieved and examined and found to be a shortened .22 long rifle calibre Unique manufactured self loading rifle, its serial number was still intact. The firearm is a prohibited weapon within the definition contained in the Firearms Act 1996. Powell also showed police where Weyermann’s shoes and blue bag in which the money had originally been located were hidden and these items were also recovered. The .38 pistol allegedly carried by Bartley has not been recovered.

24. Weyermann, upon his arrest, was advised of his rights and agreed to participate in an electronically recorded interview in which he admitted his part in the armed robbery but did not nominate anyone else as having been involved. He was charged and has been bail refused since his arrest.

25. After the recovery of the items Powell was advised of his rights and agreed to participate in an interview with police where he made admissions as to his involvement in the offence including collecting Weyermann from Mudgee, driving to the club, driving from the club, and as to the disposal of the weapon and other items. Powell nominated that Bartley was involved in the enterprise. Powell was charged and granted conditional bail.

26. Later the same day Bartley was arrested. He was spoken to at the club soon after the robbery. He said that he had not seen anything suspicious at the club prior to the robbery. Police came back to him later where he told police that he did not know anything and he had not seen Jonathon Powell all that day. They arrested Bartley, took him back to Dubbo, he declined to participate in an interview, as was his right. He was charged and has been bail refused.

27. On 22 February 2009 Powell came to the police station and participated in a further interview, giving a detailed account of the planning and execution of the robbery. Powell’s version of events has Bartley as the planner of the robbery, Weyermann as an enthusiastic participant and Powell describes himself as a reluctant participant....

28. Weyermann was further interviewed by police on 5 June, in which he again admitted his involvement in the enterprise and portrays Powell as directing him as to what to do prior to the robbery. Weyermann nominates Bartley as also being involved in the enterprise.

Court Proceedings

29. On 13 May 2009 and 3 June 2009, respectively, Weyermann initially and Powell subsequently entered pleas of guilty at the Local Court to charges contrary to s 97(2) of the Crimes Act 1900. Each was committed for sentence....

Objective Criminality

30. From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of this offence as an essential step in assessing the seriousness of the criminal behaviour of each offender. That will be done by comparing objectively the criminality exhibited in this offence and in respect of each offender, with criminality established in other offences of a similar kind. It is in this way that the objective seriousness of the criminality of this offence, in respect of each offender, can be evaluated. The objective criminality has an important impact upon the overall sentencing outcome.

31. The essence of “robbery” is that violence is done or is threatened to the owner or custodian of goods who stands between an offender and the property to be stolen. That violence has a purpose; it seeks to overcome that person’s resistance, so that the person becomes obliged to part with the property against his or her will. The victim of the robbery is in that sense compelled by force or fear to submit to theft. Such conduct is grossly antisocial and that is the essence of its criminality. “Theft” is a crime against property, the property of another person is stolen by one who has no ownership rights or any other right to the property. Thus, armed robbery is not simply a crime against property, as such, but a crime against persons as well.

32. As this case illustrates, the fear engendered is so real and so powerful that its effects may well last long after the robber has quit the scene. The objective criminality therefore focuses upon the impact of the conduct the robber has on the persons and also upon the nature of the goods and value of the goods taken by the thief.

33. I am satisfied there was substantial discussion, at least over several days, if not longer, between Powell and Bartley as to how the robbery would be conducted and potential targets of that robbery. That discussion included the recruitment of Weyermann. That recruitment I am satisfied was sponsored by Powell on the basis that he was close to Weyermann and could trust him. The recruitment was also delivered by Powell. Weyermann’s criminality, therefore, has a much shorter history than Powell’s. Indeed, in such planning as occurred after his inclusion into the criminal trio, sees him taking direction rather than offering any.

Powell’s Role

34. Powell supplies the vehicle and drives it; that vehicle is used both in the planning stage, the performance of the offence and the subsequent getaway. Powell cleans the weapon allocated to Weyermann. Powell is the one who loads it with ammunition. It is he who purchases the black balaclava worn by Weyermann. He claims to respond to directions from Bartley. While that may well be so, I am satisfied at this point in time he was a willing participant. I do not find any reluctance in him at all based upon the morality of the exercise he was about to embark upon. Such reservations as he may have had were as to his safety. I note that one robbery was abandoned at his direction but not the other.

35. Upon completion of the robbery Powell drove rapidly away with the booty, the rifle and the actual robber. Then Powell disposed of the weapon, drove to another location and disposed of the shoes and the bag in which the money was delivered. There is nothing in the facts to suggest he was acting, on that occasion, in accordance with any directions from Bartley. Powell then drove to his own home to secure the overalls, balaclava and most importantly, of course, the booty.

36. After the robbery the enormity of what had been involved may well have hit Powell. Instead of rendezvousing at Devil’s Elbow Reserve, he returned home, which he no doubt thought a more secure location for him. There he participated in a deliberate ruse upon his family. He presented in a false but distressed state. He claimed falsely to have been threatened by an unknown armed man and made to drive to Brocklehurst. That fabrication had a purpose. It was to establish a false alibi. His father accepted his distress as genuine. So I regard it as part of a deliberate ploy to give himself, and possibly Weyermann, an alibi for the time of the robbery.

37. There is hearsay evidence from the father, I think it was, that Weyermann was the person responsible for this heartless charade. I do not act on that hearsay evidence, I reject it, it is consistent with the offender’s discussion to minimising his role even at the cost of friendship. I am prepared to accept Weyermann may have contributed to the creation of the false alibi, but I do not accept that he was the architect.

Weyermann’s Role

38. I turn now to look at Weyermann’s role. He was recently released to parole on condition that he would be of good behaviour. When approached by Powell, in the vehicle I note, it would appear he needed no persuasion. He listened carefully to instructions, particularly from Bartley. So far as I can tell he was prepared to rob any venue Bartley settled on. He was willing to wear the overalls, the balaclava and carry the loaded rifle assigned to him. He carried the weapon from the vehicle to the club, that is across some public space, he demanded money from behind the black balaclava covering his face. There were three victims submitting to his demands. I note there is a fourth victim impact statement and have assumed the fourth person was a worker nearby, although not directly, apparently, subject to menace of the pump action rifle. This robbery had a sustained duration by comparison with many robberies. The term “sustained” needs to be understood against the two minute time span that the offender was in the club. He has to be taken to the safe, the money has to be stashed into the blue banking bag and possibly a red one and then delivered to Weyermann. I accept Powell’s evidence that Weyermann was untrained in weapons. His possession and use of a loaded weapon in this highly charged atmosphere was a recipe for disaster.

39. Weyermann told Anna Robilliard he was unaware of whether the weapon was loaded. Frankly I find that difficult to accept. He also told Ms Robilliard the magazine fell out onto the floor but he did not stop to pick it up, suggesting that he was aware it had fallen. The point at which it fell out has not been established in evidence. The criminality of taking a loaded gun into a robbery is not lightly to be mitigated and in this case has not been mitigated by the loss of the magazine. Certainly from the point of view of the victims there is no evidence any of them was aware the magazine had been lost.

40. I agree with Weyermann’s comment that he is blessed that no one was injured, or worse. That is particularly so because he was in a heightened or charged up mood. While I do not have confidence in Powell’s diagnosis of “irrational” I am prepared to accept Weyermann’s adrenalin was flowing and he was in an agitated or charged up state. Weyermann fled the scene with nearly $41,000. Again he ran to the vehicle from the club, that is, he was in a public place with - well, on the return journey not a loaded weapon. He assisted in disposing of evidence as directed by Powell. He participated with Powell in the creation of the ruse to establish a false alibi and the hiding of the money and the remaining clothing. Weyermann claims to Ms Robilliard his motive was to repay an $8,000 heroin debt. If so, that may have been important to him because he was using heroin within days, if not moments, of being released from prison.

Further Observation

41. The two offenders before me were beneficiaries of planning and reconnoitring undertaken by Bartley. Both were willing to accept his leadership, although I accept that Powell was able to assert himself as he did, when he indicated he was not interested, or did not want a robbery to occur in one place. Nonetheless, there was a daring in Weyermann’s conduct and a level of efficiency in Powell’s. The principle aggravating features I have referred to in this overview include a level of planning and preparation, whilst it was by no means meticulous or intricate planning, nor was this an opportunistic offence. There were three victims. The Crown has sought to argue the victims were vulnerable because of their employment. That would, of course, be an aggravated feature to the aggravation of number, that is, three.

42. These three victims, unlike bank tellers, were not working one- out behind a till; there were other workers nearby. Any victim is vulnerable when a loaded weapon is pointed at them. That the weapon was loaded necessarily aggravates the criminality, but I do not regard the victims as falling into that category of victim recognised as frail, isolated, lacking in power before the weapon was produced.

43. The offence was committed in a club where members of the public, other than direct victims, were also in danger. One of the dangers may well have sprung from somebody trying to be a hero and stop the robbery. Not all armed robberies are committed in circumstances where the public is so endangered. Likewise the journey from the car to the club with the loaded rifle had potential for public danger.

44. I have mentioned Weyermann was on parole. That feature aggravates only his criminality.

45. The sum captured was substantial. Most robberies are robberies that have figures of tens of dollars or hundreds of dollars. $40,000 is certainly a medium sized robbery.

46. There were three persons involved in its commission. That too seems to me be an aggravating feature.

47. The Crown sought to argue that the offences were aggravated because they were committed for financial gain. Almost all robberies are for some form of benefit to the robber and almost invariably benefit that can be measured in financial gain. The seriousness of this offence is already more so because of the sum taken. That is nearly $41,000 rather than forty-one dollars, which marks the offence as a more serious offence. I will not be aggravating the criminality upon the basis that it was motivated by a desire for a financial gain.

48. Apart from the presentation of a loaded weapon which, in itself of course, is demonstrative of powerful violence in its own right, there does not appear to be any other behaviour, language, threats or gestures that added to what was by virtue of the weapon and demands already a tense situation. Put in another way, the violence was simply limited to the presentation of the weapon.

49. While I accept that Bartley was present in the club with a loaded pistol during the robbery, at least on the facts before me, I am not satisfied that Weyermann was aware of his presence at the crime scene while the crime was ongoing until some time after the robbery had been completed. In other words, I do not find that he took any comfort from Bartley’s presence there, nor am I satisfied if things had gone “pear-shaped” that Bartley would have materialised from the crowd and contributed to Weyermann’s cause. Bartley may well have decided anonymity was his safest course.

Victim Impact Statements

50. I have received four victim impact statements. The material contained in the victim impact statements is not sworn evidence and has not been subject to cross-examination. To the extent if it be the case that any opinions are expressed in these statements, I recognise they are not opinions of qualified experts. Victim impact statements coming as they do from primary victims may, if I accept it as reliable, provide unsworn evidence as to the facts of the offences and their effects upon those victims.

51. The functions of statements such as these is to give victims and opportunity of being heard in sentencing proceedings by publicly identifying the impact of the trauma visited upon them by actions of an offender. Secondly, to enable sentencing proceedings to assist victims as they move towards some closure or brief resentment and/or brooding arising from the criminal conduct of an offender. Thirdly victim impact statements contribute to an offender, hopefully at least hearing at first hand and gaining some insight into the impact his offending conduct had upon a victim. Finally they serve as a reminder to a court, that is to persons such as me, the impact that crime can have upon the ordinary men and women who are its victims.

52. This is a victim impact statement from one of the women named Cindy Kelly:

“Before the armed robbery I was not a fearful person. I was not scared of the dark, I was not scared of being alone. I’m now fearful of the dark and do not like being alone. I actually go out of my way to ensure that I’m not by myself at night.

I used to be a happy-go-lucky sort of person, independent and sociable. Now I have an underlying anxiety and this affects different aspects of my life.

After the armed robbery I chose not to work Mondays. That is the day the crime happened on. I didn’t work Mondays for perhaps six months or so. I have now started working Mondays again. Whenever I work a shift at the club I always make sure that I have someone with me at the bar whilst I’m working. This could be my mum, certain customers that I know really well or friends. I’ve even taken my daughter with me and she sits in the office area of the club.

My favourite shows on TV were NCIS, Underbelly, Special Victims Unit and other crime related shows. Now I don’t watch them at all because of the content. What annoys me about this is that I didn’t have a choice in deciding not to watch these shows anymore, but it was decided by the effect the armed robbery has had on me.

I knew Grant Bartley for approximately a year before the crime. We were on friendly speaking terms. He was a nice customer. I trusted him enough that I shared personal information with him. Now I feel he used me for the information to help commit the crime. As a consequence I know I have trust issues and I’m not as friendly as I used to be in certain situations. I doubt people’s intentions, concerns and questions in general.

The changes in my personality and character angers, annoys and upsets me. It makes me cry. I used to enjoy how I lived my life before and I don’t like how it’s changed. The fact that the armed robbery was done four days before Christmas is heartless. Knowing that we had children and that it destroyed my Christmas. My biggest fear is that it will arise every Christmas.”

The second victim was Stephen Chapman. His victim impact statement contains the following:

“Before the armed robbery my sleeping patterns were fine and I slept soundly. After the robbery all that changed. My sleeping pattern became disturbed and it was hard to go to sleep. I would wake up every two or three hours and toss and turn. At times I would not be able to get back to sleep and would get up at 4am and stay up. This has slowly improved.

I was a moderate drinker prior to the robbery. After it happened I drank more to help me cope with what has happened. This lasted for about six months. During this time I also lost weight and I had three members of the club approach me and ask if I was all right health wise, as I had lost a significant amount.

I have been on blood pressure medication for a number of years. After this incident I wasn’t feeling myself, so I went to my doctor for a health check. My blood pressure was up. It was not stable. Consequently I have to go on a stronger dose of medicine.

I used to be comfortable at my work environment and was relaxed and easy-going. Now I notice that if I am by myself at the club I feel anxious and uncomfortable. When I walk down the corridor at work I am reminded of the robbery, as I saw the gunman at the front desk on the day of the robbery. He then turned around and pointed the gun at me. I get flashbacks in the corridor. I don’t like being by myself in the club.

Now that it’s getting closer to Christmas it brings back memories of the armed robbery which happened about two days before Christmas. I am fearful it could happen again.”

And the final victim is another male, Douglas Burke. He writes this:

“I have flashbacks that occur at any time of the day relating to the events of 22 December 2008. These flashbacks are of a gunman at my side with his gun pointed at my hip.

Since the traumatic event of last year I have had thoughts of role swapping with the gunman. What I mean by this is for the gunman to experience what I did. I believe that if this was possible, it would be beneficial for both parties. I also believe that this is a result of the crime and have had numerous moments of anxiety. I have felt powerless at that time because of the gun pointed at me.

I believe that my work has suffered in the Dubbo Railway Bowling Club. During the year I have made at least two notable accounting errors which I normally would not have made. These errors occurred not long after the robbery.

I have strong fears that the events may happen again in the future. Also I fear that the people involved in the armed robbery may try to search for me at the club, at home or elsewhere.

The relationship with my wife has changed regarding my tolerance and patience with her. I feel little things at home appear to annoy me more than before the events of last year. This is the first time I have spoken about the events of last year to anyone in great length.”

Subjective Matters

53. I now turn to the subjective factors. I am both entitled and required to do that. As I said earlier, not only am I sentencing for the criminal offence, but I am also sentencing each offender for it. Each offender coming before the court varies from others who stand or who have stood for sentences. Circumstances personal to an offender may offer to a court some explanation and insight into the commission of this offence by an offender or some reason why a more or a less sentencing outcome is appropriate in each case.

54. I deal firstly with Jonathan Powell.

Background, Family and Relationships

55. Powell is a single man aged twenty-one living with his parents and nine siblings in the Dubbo region. His parents sought to raise him to behave in a “Godly way”. To this end, corporal punishment was used in the form of a strap administered by either parent when thought appropriate.

56. The father suffered anxiety and depression to a point of incapacitation for about five years during Powell’s teenage years. The father believes that this incapacity extended to the performance of his role as a parent.

57. Powell spent his school years feeling isolated and rejected by his peers who he claims bullied him. The school was informed on occasions, which invariably, Powell says, backfired on him. The focus of bullying is said to have centred on name-calling, problems about his red hair, his large family and in later years amounted to hitting him and pushing him against walls.

58. He told a treating psychologist that he attended subsequent to this offence he has poor relationship and low attachment with his family. He finds it difficult to have a sensible talk with his father or other family members. While he lives on the parents’ property, he is away from the main house in what is called a relocatable sheet metal office building. To avoid arguments he has minimal contact with the family.

59. In more recent times he has struck up with a friendship with a young lady named Sharna, who as I understand he also met while working at the abattoirs. He describes her as his fiancée. They met some time around July or August of 2009.

Education, Skills and Employment

60. He was educated at the Dubbo Christian School to Year 10 standard. He says he was an above average student. He said he left because he was unhappy at school. Last year he was doing what appears to be three days per week TAFE course. That is what he told Gary Black, the treating psychologist, which I assume to be Certificate II in meat processing. He also holds a Certificate II in hospitality. Both of these courses may give some insight into his TAFE interests. He attends bible study through the week.

61. Since leaving school he held an apprenticeship at ATS Screen Printing in a printer and embroidery business. The apprenticeship was abandoned when his employer refused to pay him. Then he worked at Fletcher International Exports for eight months. That followed with a period of employment by Jimmy Chang(?) at Jimmy’s Kitchen, a Dubbo Chinese restaurant where he has worked from October 2006 to some time in 2009. It seems that would have finished before July of 2009.

62. In his evidence Powell described himself as currently a job seeker. He currently is registered with an unemployment agency and actively seeking other work. His last position was at the local abattoir. His departure was mutually agreed when both he and his employer determined he was unsuitable for this kind of work.

General Health

63. In 2009 Powell had a severe lung infection. He is a tall man at 192 centimetres in height and weighing 108 kilograms. Apparently he has lost some thirty kilos. I have no doubt he is the healthier for that. Otherwise he appears in good physical health.

Mental Health Issues

64. Sam Borenstein, clinical psychologist retained by the defence, diagnoses compromised self-esteem, low levels of consequence subsequent to being bullied. He presents to the Court as isolated from family and peers, more so since his arrest. Borenstein describes him as naïve. Others also use that term, however, I do not find him to be so.

65. Borenstein opines Powell has a desire for emotional recognition and friendship which overrode his judgment. In my view that is likely in respect of his relationship with Bartley. So far as his relationship with Weyermann, it is likely Powell is the leader of those two.

66. An interesting insight into his personality is to be found in the contradictions which emerge from the psychological reports before me. For example, my sense is that he sought to leave Borenstein with the impression that he requires speech therapy for a stutter, which I have no doubt he has, when he was a child and that he received that therapy. He is still a stutterer and when he saw Gary Black he made clear to Black that he had received no speech therapy treatment. He told Black he did not get along well with his father or family. He told Borenstein he got along well with his family, save for a sister, the second eldest in the family. He told his father, “I had three good friends. Now I have one and that is you, dad”.

67. Gary Black notes a comparison and improvement in scores for anxiety and stress between the second and sixth counselling sessions, noting they were now in the normal range, while the depression score remained moderate. Powell’s own assessment of the six sessions with Gary Black is that he “is uncertain” as to its benefit. I accept Borenstein’s opinion that Powell’s thought processes and contents are normal, but there seems to me much inconsistency in the history he is giving to various people or the messages that he is giving to various people.

68. Borenstein comes to a view that there is no suggestion of any serious psychosis or perceptual disturbance and that Powell is cognitively in tact, in which case those inconsistencies become the more disturbing.

Character and Reputation

69. He is a young man approaching his twenty-second birthday, isolated, a past good work ethic, searching for emotional commitment from his peers and possibly his parents. He appears to have an emotional commitment from Sharna. He is inclined to see the fault in others.

70. He regards himself as a Christian and takes his commitment, at least superficially, seriously. To this religion he appears to be serious and claims adherence to its values, although when he falls short of them, for example, in the offence before me, it is usually someone else’s fault.

71. He would appear to be someone who is not without courage....

72. He has no prior interaction with the police or the criminal law. He is, for the purposes of the law, a person of good character. Each of his four referees said the offence was out of character for him. Although fairly young, his record would seem to confirm that. He is described by his referees in terms such as “quiet”, “polite”, “respectful”, “not given to excessive language”, “befriends others”- for a man who is isolated, I cannot quite follow that- “easy”, “God-fearing”, “gentle”, “earnest”, “well-meaning”- again in the circumstances of this offence I find that difficult to accept- and “remorseful”.

Attitude to the Offence

73. His claim to Gary Black was that he was experiencing post traumatic stress disorder type symptoms, burning in his chest, panic attacks, nightmares and recurring flashes about the robbery. He said trigger words set him off. He claims a strong remorse and disgust at his involvement in the robbery. I accept that he does now, against his values.

74. He acknowledges his involvement clashed with a number of his religious beliefs. He has pleaded guilty to the charge from the outset, although he has minimised and shifted responsibility for the criminal conduct wherever he could.

75. His claims of threats and fear of Bartley are in my view as false as the performance before his father on the day of his arrest... When confronted by police he cooperated immediately with them, knowing that to do so would put him offside with Bartley. His cooperation facilitated, it is said, recovery of the cheques taken - my understanding was that all of that was found by the father - clothing and rifle used and identification of three particular pants. That is the view of the police. In a statement to police he has sought to identify the role of each offender. For the purposes of this hearing I find he has sought to minimise his criminality.

76. He also sought to reshape his relationship with Bartley by exaggerating or creating threats and acts causing fear and duress as his motivator for continuing in the relationship with Bartley and sole motivator of his involvement with him in the robbery.

77. .....

78. ....

79. .... I ... give a twenty-five per cent discount on the sentence I otherwise would have set but for the plea of guilty and remorse.

I must have upped that five per cent. I must have upped that to ten per cent in light of the overall result. I will change that now.

80. In all, the total discount will be one of forty-five per cent.

Rehabilitation Prospects

81. Theoretically Powel’s rehabilitation prospects should be very good. He is not, so far as is known, addicted to drink or drugs. Although he has trouble holding a job down for any real length of time he does appear to have a good work ethic. His religious values reject violence and anti-social conduct. His family are supportive of him notwithstanding tensions that exist between them, and he now has a fiancée, Sharma, who has no issues with the criminal law and every interest in his successful life ahead. He has good health. His mental health is basically intact although there are issues to be addressed. In the fifteen months since this offence there has been no further offending. On the other hand, he seems not to understand the need for honesty, frankness and commitment when working with a counsellor for the purposes of rehabilitation. To his credit he did attend all counselling sessions and that counts as a positive for his rehabilitation, but while he continues to blame others he cannot heal himself. Borenstein sees him as in need of further counselling. In its absence his chances of re-offending are engorged.

Subjective Features for Chade Samuel Weyermann

Relationship, Family Background

82. Sam Weyermann is of Thai origin and birth. He was adopted by Swiss parents at the age of two. Martin Weyermann travelled to Thailand to adopt him. The home environment was stable. His mother is a nurse, although now retired. Initially the family resided in Switzerland and later migrated to Australia when Weyermann was thirteen or fourteen. I think I was told in evidence he was thirteen and a half. Weyermann is now twenty-three and single. Weyermann had behavioural issues as a child. The family live in the Mudgee region, close to extended family, as I understand it, where he was located when Powell recruited him.

83. In Weyermann’s mid to late teenage years he moved to Sydney and for a period contact with the family virtually ceased. He later moved to Dubbo where he formed an unstable relationship with a woman called Jackie. There were serious issues of domestic violence towards both Jackie and her family. There is one child, a son, from this relationship, now living in another State. It would appear Weyermann has lost contact with the child. His mother has maintained contact with Weyermann whilst he has been in custody and my sense is that there was contact re-established when Weyermann returned to Dubbo.

84. Weyermann has been to Thailand in an unsuccessful attempt to find his biological parents and it would seem to me received a fairly unsatisfactory explanation or insight into how it came to be that he was put up for adoption.

Education, Employment and Skills

85. Sam Weyermann’s early education was in Switzerland. Some of it at boarding school with a view to placing limitations on his behaviour. In Mudgee he attended St Mathews College but left that school rather than be expelled. He then went to Year 11 at Gulgong High School but by that time his behaviour was rebellious and unsettled and there were instances of drug abuse. His attendance was not good and he was smoking cannabis at the school. He left that school rather than be expelled. Again to his credit he tried unsuccessfully to complete Year 12 at TAFE.

86. He was employed at the Dubbo abattoirs and it was there, I sense, that he met Powell. That employment was not for a long period and he left, he says, on the promise of a better position which never eventuated. His time at the abattoirs represents his total work experience. He appears to have survived since his mid teenage years and paid for drug use and for a heavy gambling commitment, at least in later years, by apparently undetected criminal activity.

General Health

87. He presents in court as a fit, young man. He has, he says, been hit over the head with an iron bar during a “bar fight”. He has also had a couple of fits. Whether the fits are some response to neurological trauma as a consequence of the iron bar or the side effects of drug abuse is unknown, but in my view should be investigated. He suffers from a dermatitis condition that flares up from time to time. He has two hospitalisations whilst in custody. One of them at a time when he had tonsillitis.

Mental Health Issues

88. He is on anti-psychotic medication. It seems he had an attention deficit disorder and hyperactivity as a child that has persisted into adulthood. Ms Robilliard, retained by the defence, sees his behavioural history as consistent with a diagnosis of conduct disorder followed by anti-social personality disorder. Both he and his mother use the term “rebellious” to describe his emerging personality as a child and during his mid to teenage years. He has given a history to Dr Henderson, who saw him in custody in 2007, of auditory hallucinations and having grandiose themes. Whether those grandiose themes have touched upon any of the other history he has given I am unsure, but it seems to me likely, given his absence of income and some of the material I will come to in a minute.

89. During the course of Powell’s evidence, Powell was cross-examined by Ms Robinson, counsel for Weyermann, on the closeness of the relationship between the two co-offenders. During that cross-examination I observed Weyermann to become teary and distressed of being reminded of the closeness of that past association. I am satisfied that relationship was very important to Weyermann. Powell had visited him in prison on a number of occasions. It is likely Powell was a most significant person for Weyermann and probably his most significant peer. The imploding of that friendship will add to the significant persons who have been lost to Weyermann. They include his biological parents, possibly his father, Jackie and his child. Although not diagnosed, I suspect an anger arising from a reactive depression consequence upon those losses and his present incarceration. However, he has been diagnosed by Professor David Greenberg with a poly-substance disorder, an alcohol dependence disorder, and the diagnosis of anti-social personality disorder has been confirmed and a possible schizo-effective disorder arising from the hearing of voices. That schizo-effective disorder is likely to be a drug induced illness as a consequence of his cannabis abuse. His mental health issues present as a serious ongoing negative factor to his rehabilitation prospects.

Alcohol, Drugs and Gambling

90. He reports a gambling addiction of up to $9,000 per week on pokermachines. As I said a moment ago, I find a $9,000 per week gambling addition, in the absence of any income stream, per week, as being extraordinarily high. I cannot say it is wrong, but the undetected criminal activity need to support that would have to have been monumental. He began drinking soon after commencing high school. His alcohol intake was costing him a hundred dollars per week. His drink of choice appears to be vodka and vodka mixes. He was smoking cannabis aged fourteen as a relaxer. He still likes to smoke it because it helps him to sleep. It would appear he does not understand the toxicity of cannabis build up in a body, causing paranoia, aggression and mental health problems, including, in my view, auditory hallucinations.

91. After arriving in Sydney, Weyermann went clubbing nightly. He was using heroin intravenously and ecstasy as well. When arrested for this offence - bear in mind he had only been out ten days, I think - he had resumed cannabis, heroin at four caps, and alcohol, daily. His drug and alcohol abuse are becoming long term. They appear to be well entrenched addictions and pose major obstacles for him in his rehabilitation progress.

Character

92. Sam Weyermann is a young twenty-three year old man falling in the below to average range of intelligence, who appears unable to function lawfully or effectively in the community. He is not without insight in regard to his condition but seems to prefer the risk taking lifestyle that marked his recent years. He has just finished a ten month minimum term and was unable to last three weeks on parole before re-offending. That last period of custody came ten days after an earlier period of custody, as will be seen later.

93. His criminal history commences in May 2006 with a common assault. He has a range of criminal offences on his record, including driving matters, common assaults, goods in custody, use of a weapon with intent to commit an indictable offence, further assaults and breach of apprehended violence order charges. Those later assaults and the breach of apprehended violence orders relate to a turbulent and unstable relationship with Jackie and her extended family. That is not to excuse them, but rather to confine them to a period. They are nonetheless criminal behaviour for which he is responsible.

Rehabilitation Prospects

94. Absent some intense rehabilitation therapy and oversight he appears at high risk of re-offending. There are drug, alcohol, gambling addictions, requiring criminal activity for their survival and no indication that he does not want them to survive. There are mental health issues desperately needing addressing and maybe fuelling his rebellious pre-disposition. There is an impoverishment of employment skills and work ethic. Apart from his mother there now appears to be an absence of a stable significant person in his world. He is in a custodial setting which is contraindicated as a force for rehabilitation.

Attitude to Offence

95. He has pleaded guilty from the outset. He claims remorse and has backed that up with a note that he has written to the court. That note is in these terms:

“My name is Samuel Chade Weyermann, born 21/08/86. What I have done today I still can’t explain. I am blessed no one got hurt and I wish I could apologise personally to the people involved, staff, bartender, et cetera. I take full responsibility for what I have done today, including all the people I put in danger. I would like to ask your Honour that what I did I did myself as stupid as I was I did myself.”

I find he has insight. I find that he is sorry and remorseful. I am concerned whether that remorsefulness will convert to rehabilitation. Nonetheless I intend to give him a twenty five per cent discount on the sentence I otherwise would have set for his early plea of guilty and his contrition.

Setting the Sentence
Deterrence

96. Robberies using loaded weapons constitute a serious offence. Sentencing for these offences must be set against a background that one aim of sentencing is to deter would be offenders. Parliament sets maximum sentences with deterrence very much in mind. This offence carries a maximum sentence of twenty-five years imprisonment. Of the 250 persons sentenced for this offence since December of 2009 only fifteen have avoided the gaol walls. The remaining 235 have been sentenced to terms of incarceration ranging from eighteen months to sixteen years. The objective seriousness of this offence is such that punishment of such severity is called for, that is the harshest form of punishment known to the law is to be harnessed in this case. Powell’s role in the actual offence is substantially less than Weyermann’s. However his role in the planning, provedoring before and covering up after are greater than Weyermann's.

97. Overall Weyermann’s criminality in brandishing the weapon, actually causing the fear and threat from the lethal violence is greater than Powell’s. Powell’s subjective circumstances, particularly his prior good character and ... and prosecution are more favourable than Weyermann’s. These differences will be reflected in both the starting figures and the ultimate outcome. But for his plea of guilty I would have set an overall sentence for Weyermann of six years imprisonment. That figure is discounted by twenty five per cent for the utilitarian value of the plea and the remorse, making the overall reduced sentence one of four and a half years. In his case I find special circumstances. But for ten days, if I have got the right figure, he has been in continuous custody since 14 July 2008. Prior to that date he had been released from custody on 4 July 2008 against an earlier admission of 5 December 2007. Thus but for two small breaks of about nine or ten days each he has been in continuous custody since 5 December 2007. I note that because of his youth at twenty three his character and maturity are still forming. It is better if he can rehabilitate to do so in the community. Mr Weyermann would you just stand up for a moment please while I sentence you.

Formal Orders

98. Chade Samuel Weyermann, you are convicted, that you on 22 December 2008 at Dubbo did rob Douglas Bourke of certain property, namely $40,929.30 in Australian currency and cheque, the property of the Dubbo Railway Bowling Club Limited whilst you were armed with a dangerous weapon, namely a .22 sawn off unique brand pump action rifle. For that offence I set a non-parole period of two years, to date from 13 April 2009 and to expire on 12 April 2011. I set a balance of term of two and a half years, to expire on 12 October 2013. Your first eligible date for release to parole is 12 April next year. You have to persuade the Parole Board, I cannot order your parole. You have to persuade the Parole Board of two things, that you are not a danger to yourself and that you are not a danger to any other person in the community. If you do not do that you will not be granted parole the first time you go. I do not know whether you know this or not but if you are not granted parole on the first occasion you go there you will have to wait twelve months before you can go again. What you need to do is to concentrate on getting out on the first parole date by doing all you can to demonstrate to all the people around the gaol that you are rehabilitated. Do you understand that? Right.

99. If you do not you will stay in for another twelve months and at the end of that twelve month period if you do not convince them that you are not a danger to yourself and not a danger to others, if you do not convince them of that you will be in for another twelve months. So you could, in theory, end up serving that whole four and a half years. The person who will make that decision really at the end of the day is you not them. If you go in there with good credentials they must give you parole. I will come to the breach of bond in a moment.

100. Jonathan Powell, but for your plea of guilty and assistance to police I would have set a sentence of four years imprisonment. I reduce that sentence by forty-five per cent on account of your plea of guilty .... That reduces that original four year sentence to one of 26.4 months. That is two years, two and a half months. ... I have determined nonetheless to reduce it to one of twenty-four months so that I can suspend the sentence. I do that bearing in mind rehabilitation is a factor that should be given extra weight in setting a sentence for a young man if it is at all possible.

101. ....

102. .....

103. I decline at this point to set a non-parole period.

104. Would you stand up please. Jonathan Alan Powell you are convicted that you, on the twenty-second day of December 2008, at Dubbo, did rob Douglas Burke of certain property, namely $40,929.30 in Australian currency and cheque, the property of Dubbo Railway Bowling Club, whilst being armed with a dangerous weapon, to wit, a .22 calibre sawn-off Unique brand pump action rifle.

105. In respect of that offence I set a term of imprisonment of two years.

106. Pursuant to s 12 of the Crimes (Sentencing Procedure) Act, conditional upon you entering into a bond to be of good behaviour, I suspend the operation of that sentence.

107. The bond will have as its condition that you will be supervised by Probation and Parole and that you attend such counselling, treatment, management and programs as required by them, including, if you have not yet got employment, a program related to the personal support for people who are unemployed. That program is run by any Commonwealth based employment agency.

108. Mr Weyermann I need to come back to you. Your conviction and sentence has resulted in your being in breach of a good behaviour bond given to you by Judge Wood, as I understand it, in response to an appeal that you lodged against a conviction of 13 August 2008. You were given a s 9 bond to be of good behaviour for eighteen months. The offence I have just dealt with amounts to a breach of that.

109. In respect of that offence, the term of imprisonment originally imposed by the Magistrate will be restored. That is to say a term of twelve months imprisonment with nine months non-parole to date from 13 April 2009, the non-parole period to expire on 12 January 2010 and the balance of term to expire on 13 April 2010. The sentence is entirely concurrent with the sentence that I have just given you, no more time to serve. I do that because the Crown in his submissions did not ask for any further period of incarceration.

110. In respect of a firearm offence, a 166 offence, on the application of the Crown that charge is dismissed.

111. Any further matter Mr Crown?

[Discussion between His Honour and Legal Representatives]

112. I remand Mr Powell into your custody Mr Hockey. The reason for that is you are a sentenced prisoner at the moment, conditional upon you entering the bond. You do not enter the bond, you go through the door. So you enter the bond and you keep it. If you do not keep the bond, you come back and go through the door.