R v Will
[2018] ACTSC 154
•24 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Will |
Citation: | [2018] ACTSC 154 |
Hearing Date: | 24 May 2018 |
DecisionDate: | 24 May 2018 |
Before: | Mossop J |
Decision: | See [34] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aid, abet, counsel or procure aggravated robbery – limited criminal history – guilty plea – sentencing purposes – general deterrence – need for adequate punishment – denunciation – recognition of harm – consideration of s 53 of the Corrections Management Act 2007 (ACT) – custodial sentence |
Legislation Cited: | Criminal Code 2002 (ACT), ss 45(1), 310 Corrections Management Act2007 (ACT), s 53 |
Cases Cited: | Munro v The Queen [2014] ACTCA 11 R v Melkie (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 17 February 2011) R v Munro (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 14 May 2013) |
Parties: | The Crown (Crown) David Allen Will (Offender) |
Representation: | Counsel J Hiscox (Crown) J Sabharwal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitor (Offender) | |
File Number: | SCC 86 of 2015 |
MOSSOP J:
Introduction
David Allen Will has pleaded guilty to the offence of aiding, abetting, counselling or procuring the offence of aggravated robbery committed by two other people (Mark Munro and Sam Melkie) at the Mawson Club in Mawson on 10 May 2004.
The offender was the instigator, who planned and organised the robbery of the Mawson Club including obtaining information from an inside source that was critical to the success of the operation.
The maximum penalty for the aggravated robbery pursuant to s 310 of the Criminal Code2002 (ACT) is 25 years imprisonment, a fine of $375,000 or both. A person who aids, abets, counsels or procures the commission of an offence is guilty of that offence: Criminal Code s 45(1). Therefore the maximum penalty to which the offender in this case is exposed, is the maximum penalty for aggravated robbery.
Facts
The robbery took place on 10 May 2004.
The offender knew a man named Graeme Pagden who worked at Chubb Security Services Ltd (Chubb). The offender repeatedly asked Mr Pagden about doing a job on a Chubb van, using Mr Pagden’s inside knowledge of the business. He offered to pay Mr Pagden $15,000 for information that would assist him with the robbery. Mr Pagden subsequently suggested that the best place would be the Mawson Club on a Monday where the offender could expect takings of around $150,000.
The offender subsequently recruited Mr Munro, who was a long-time casual acquaintance of the offender, to participate in the robbery. He also recruited Mr Melkie who he knew because of a connection between his ex-partner and Mr Melkie’s partner. He provided them with information received from Mr Pagden. He also provided them with instructions to use a carport at the house of a friend of the offender’s as a place to park the getaway vehicle. The offender knew that firearms may be used to commit the offence. The money obtained from the robbery was to be returned to the offender for distribution amongst the parties.
The robbery occurred at about 3:47pm on 10 May 2004. The Chubb security vehicle had attended the Mawson Club with three employees of Chubb on board. Two of those employees had gone into the club to obtain the takings from the cash office. The satchels containing the takings contained $151,995.35. As the two employees left the club, they were confronted by Mr Melkie and Mr Munro. Mr Melkie yelled “get on the ground, get on the ground”. Mr Munro was holding a shot gun. Mr Melkie was holding a pistol. Mr Melkie approached the employee who was holding the satchels, reached around his neck pulling him backwards to the ground. Mr Melkie took the satchels. The other employee stopped beside a short retaining wall and proceeded to get on the ground by dropping to one knee. Mr Munro pointed his shot gun towards this employee and discharged a single round in his direction. Shot from the shot gun struck this employee in the stomach, chest and head, knocking him to the ground.
Mr Melkie and Mr Munro ran to a car park adjacent to the Mawson Club, got into the car and drove away. It was subsequently left at the carport that the offender had identified.
Following the robbery, money was distributed in accordance with the agreement. Each of Mr Melkie, Mr Munro and the offender received a $40,000 share. Mr Melkie asserted that he gave half of his share to the offender but it is not possible to make any finding in relation to this. The offender paid a total of $15,000 in cash to Mr Pagden.
Because of the difficulty in identifying the persons who carried out the robbery, it took quite some time for the police investigation of the matter to make significant headway. A link was subsequently established between Mr Melkie and Mr Munro, and the offence because their DNA was found upon cigarettes that had been located in a bus shelter near the Mawson Club, where two men had been observed waiting, shortly prior to the robbery. That DNA link was only made in late 2009 or early 2010.
In 2010, the offender was compelled to give evidence before the Australian Crime Commission. He was then subpoenaed and gave evidence in proceedings brought against Mr Munro and his brother, Ian Will. Only after those proceedings were concluded was the offender charged with the present offence in December 2014. Part of the delay in concluding these proceedings resulted from the vacation of an earlier trial date and an application on the offender’s part to permanently stay the proceedings. That application was ultimately dismissed in November 2017.
The offender has not repaid any of the proceeds of the robbery.
Victim impact statement
A victim impact statement prepared by the employee of Chubb, who was shot during the course of the robbery, was tendered and read by counsel for the Crown. That statement indicated that following the robbery, he was required to undergo emergency bowel surgery because pellets had perforated his bowel and a portion of his large intestine was required to be removed. He also had an operation upon his hand and physiotherapy treatment as a consequence of his hand being damaged by shot gun pellets. Only a few of the shot gun pellets were removed from his body and he continues to carry them. However, the greatest significance of the offence was the psychological effect. He required three years of counselling and psychiatric treatment and was required to take antidepressants and anti-anxiety medication. He was not able to go to the shops without a carer. In 2008, he moved to a quiet rural town as he was not able to cope with living in city. He has not been able to return to work. He has a fear of crowds. He expressed his gratitude for the police officers and their “tireless efforts” to apprehend his attackers.
Subjective circumstances
The offender was born and raised in Canberra and is one of four children. He described a stable childhood. Two of his sisters are now dead. He has no contact with his brother. He is married. He is the father of five female children, now aged between 23 and 43 years and with whom he maintains regular contact. He separated from his first wife and was left with principal responsibility for the raising of their three children. He subsequently remarried and had another child. His wife died unexpectedly at a young age due to a brain aneurysm when that child was four years old. He married again and has been married for over 24 years to his current wife. They have one daughter who is now 23 years old.
He has been self-employed as a cleaner for approximately 30 years.
He drinks a significant amount. An assessment by the author of the pre‑sentence report assessed his alcohol consumption as being at the risky or hazardous level requiring some intervention. He denied using illicit drugs. In relation to the offending conduct, he denied supplying his associates with firearms or a plan for leaving the scene of the crime. However, he admitted knowing that firearms may be used in the offence. He said that he was motivated by “easy money”. He demonstrated some insight into his offending behaviour and acknowledged the impact on the victims as well as on his own family.
He has a number of physical health conditions which are managed by medication. He was admitted to hospital in March this year suffering from septicaemia which was possibly a result of diverticulitis. He suffers from gout which has not been able to be adequately treated because he is allergic to the usual drugs used to treat gout. His general practitioner describes his gout condition as being very painful and the medical records in evidence recorded it as being “highly disabling”. The offender’s general practitioner also describes that he has “a long history of alcohol abuse with involvement of other organ systems causing him cardiovascular, neurological, gastrointestinal and vascular disease”. The doctor records that his general health has deteriorated over the last six years. The medical records disclose that he had strokes at age 50 and 54, as well as a transient ischaemic attack at the age of 58. His general practitioner has observed a significant mental and physical toll that the events leading up to his sentencing have taken upon him.
The evidence provided by his wife and children emphasise the significant role that he has played in their upbringing and the significant role that he plays as a mainstay of his extended family. Clearly, a lengthy sentence of imprisonment will have a significant effect upon members of his family. Other references from neighbours and friends attest to his good character, that he is a family-oriented person and very supportive of friends and family.
The offender has not spent any time in custody in relation to the offence.
Criminal history
The offender has a limited criminal history. Between 1972 and 2002, he has some minor matters on his record, the most serious of which was possessing methamphetamine for which he was convicted and fined in 2001 and drink-driving in 2000, which was dealt with by way of a fine and a period of disqualification. There are also traffic matters which today would be dealt with by way of traffic infringement notices. In New South Wales, he has three convictions for drink driving and one matter which was dealt with without a conviction. There is certainly nothing on his criminal history which would indicate any previous conduct like that admitted in this case. As a consequence of this limited criminal history, he is entitled to a degree of leniency in relation to the charge that he is now facing.
Plea of guilty
The offender was first charged in the Magistrates Court on 12 December 2014. He was committed for trial on 21 April 2015. A trial was listed to commence on 30 May 2016 but was vacated. The offender sought a permanent stay of the prosecution which was ultimately refused on 29 November 2017. The trial was listed to commence on 3 April 2018. On 26 March 2018, the offender indicated that he would plead guilty. The trial was then vacated and on 16 April 2018 he was arraigned and plead guilty to the single count on the indictment. The plea of guilty was clearly not an early one. However, it had significant utilitarian value. The Crown case was not an overwhelming one because there were complicating factors such as deceased witnesses and improperly obtained evidence which would need to have been addressed at the trial. I will allow a reduction of approximately 10 per cent on the sentence that I would otherwise have imposed on account of the plea of guilty.
Sentences of co-offenders
Mr Melkie pleaded guilty and was sentenced by Gray J on 17 February 2011: see R v Melkie (Unreported, Supreme Court of the Australian Capital Territory, Gray J, 17 February 2011). His Honour considered that the starting point for the charge of aggravated robbery was 12 years which was reduced to nine years on account of the plea of guilty. A non-parole period of four years and six months was set. Mr Melkie had a significant criminal history including four counts of armed robbery in 1989, although following the commission of the offence, he had “quietened right down and understood the seriousness of his offending”. That change in attitude was reflected in his crime free lifestyle since the offence. He was the carer for his wife who suffered from multiple sclerosis and had deteriorated to the point where she had become a paraplegic.
Mr Munro, who was the offender who discharged the shot gun, was sentenced by Nield AJ to a sentence of 12 years for aggravated robbery and 10 years for intentionally inflicting grievous bodily harm: see R v Munro (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 14 May 2013). The total head sentence was 18 years. The non-parole period was 13 years. On appeal that was reduced to 10 years for the aggravated robbery and nine years for the grievous bodily harm: see Munro v The Queen [2014] ACTCA 11. The total head sentence was 15 years with a non-parole period of 10 years. Mr Munro had a more significant criminal history than the offender.
Consideration
There is no doubt that robbery, particularly aggravated robbery involving the use of a firearm is a very serious offence. In this case, not only was the robbery committed in company and with an offensive weapon, but that weapon was used and caused grievous bodily harm to the victim. I adopt the description given by Burns J in Munro v The Queen at [142]:
142 This was a very serious example of this type of offending. It was a brazen robbery, carried out on a public street, at a time when it could be expected that members of the public, including children, would be in the vicinity. It was carried out by two men acting in company; both were armed and at least one of the firearms was loaded. A shot was discharged, for reasons quite unnecessary for the accomplishment of the robbery, seriously wounding a security guard. The offence was premeditated and well planned. The robbery and shooting called for sentences which made it clear that this type of reckless lawlessness will not be tolerated.
The objective seriousness of the offending conduct was in the upper range of objective seriousness for the offence of aggravated robbery.
It is clear that the employee who was shot during the robbery has suffered not only the immediate physical impacts of being shot but also ongoing and long-term psychological impacts.
The extent to which a person who aids, abets, counsels, or procures a crime is culpable will vary from case to case. In some cases, the role of such a person will be at the periphery of the criminality. In other cases, such as this one, the person will be central to the planning and organisation of the crime and hence, the conduct will warrant punishment to no lesser extent than the persons who perform the physical acts constituting the offence. In this case, there can be no doubt that the offender was the planner and instigator of the offence. But for him and his contact with Mr Pagden and his recruitment of Mr Munro and Mr Melkie, the offence would not have happened. He knew that it may involve the use of weapons. Because of his central role in planning the robbery, his culpability in relation to the aggravated robbery is greater than Mr Melkie and Mr Munro even though they performed the physical acts.
However, in contrast to both Mr Melkie and Mr Munro, the offender does not have a significant criminal history and certainly no offences of this nature prior to the commission of the offence.
Counsel for the Crown accepted that in this case, specific deterrence was not a significant issue. That is clearly the case having regard to the offender’s limited criminal history and the evidence of his conduct in the period since the offence was committed. The submissions on behalf of the Crown, which I accept, were that in the circumstances of this case, the need for adequate punishment, general deterrence, denunciation and recognition of harm would predominate over specific deterrence and promotion of rehabilitation.
I have taken into account the delay in in the matter reaching the point where a sentence can be imposed. Most of that delay is not of significance because it resulted from the offender and his co-offenders committing, what counsel for the Crown described as a “near-perfect crime” and hence, results from the time that it took to obtain evidence sufficient to prosecute the crime. There was a period, between 2010 and 2014, where forensic decisions by the Crown to pursue the cases against Mr Melkie and Mr Munro delayed somewhat the bringing of proceedings against the offender. I take into account that in the period since 2010, the offender has been subject to a state of uncertainty in relation to the bringing of charges against him. I have also taken into account the fact that in the period since the offence, the offender has only had two convictions for low range drink driving and has otherwise demonstrated good character.
I take into account the offender’s age and health conditions. Neither of these factors permit the Court to impose a sentence which inadequately reflects the gravity of the offence. However, I accept that his age and health conditions are such that imprisonment will be a greater burden upon him than a younger person. I also accept that for a man of his age and health conditions, time spent in prison will be a greater burden because it will constitute a greater portion of his remaining life than it would for a younger person in better health.
A submission was made to the effect that he would be denied the continuity of medical care that he has experienced with his current general practitioner when he is in custody. I do not consider that loss of continuity of care to be of significance having regard to the obligation under s 53 of the Corrections Management Act 2007 (ACT) to provide healthcare to detainees and the absence of any specific evidence about the significance of that continuity in the offender’s circumstances.
In the circumstance of this case, I adopt the same numerical starting point as Gray J in sentencing Mr Melkie, namely 12 years. Reducing this figure by 10 per cent on account of the plea of guilty, I will impose a sentence of ten years and 10 months imprisonment. The non‑parole period will be a period of slightly more than half of the head sentence, namely a period of six years.
Orders
The orders of the Court are therefore:
1. The offender is sentenced to imprisonment for a period of 10 years and 10 months commencing on 24 May 2018 and ending on 23 March 2029.
2. The non-parole period is six years commencing 24 May 2018 and ending 23 May 2024.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 4 July 2018 |
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