R v Bartley, Grant [2010] NSWDC 269

New South Wales District Court

CITATION: R v Bartley, Grant [2010] NSWDC 269

JUDGMENT DATE: 23 July 2010

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Convicted. Sentenced non-parole period of 2 years and 1 month; balance of term of 2 years

CATCHWORDS: Criminal Law - Sentence - Robbery whilst armed with offensive weapon - co-offenders - late guilty plea - contested hearing - $41,000 taken - recreation club - substantial planning - allocated roles - planner and architect - robber - getaway driver - loaded pump action rifle - moneys recovered - purpose of victim impact statement - reasonable subjectives.

LEGISLATION CITED: Firearms Act 1996

CASES CITED: The Queen v Gladue [1999] 1SCR 688 [80]

PARTIES: Regina Grant Michael Bartley

FILE NUMBER(S): 2009/9803

COUNSEL: Crown: L Shaw Defence: C Mendes

JUDGMENT 1. Just days before Christmas of 2008, three men were involved in a brazen armed robbery of the Dubbo Railway Bowling Club. Two of these men have already been sentenced. The third and oldest, Grant Bartley, has pleaded guilty to the robbery of the Dubbo Railway Bowling Club which netted nearly $41,000 from the club. But [he] disputes - assertions made by others as to his extent of his role in the robbery. The others, of course, include the Crown as well as his co-offender. Evidence has been called from J. P. the driver of a getaway vehicle in support of a more extensive role for Bartley than the defence would have it. I remind myself that matters adverse to an offender must be proved beyond reasonable doubt. 2. Today Grant Bartley is to be held accountable for his role in this criminal conduct. 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 this offender, harming those victims in the Dubbo community, The Queen v Gladue [1999] 1SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offence before the court, I will also need to have regard to matters personal to the offender called subjective matters. The starting point for these assessments requires the sentencing judge to make findings of facts from the evidence before the court relating to both the offence and the defendant. The offender's rehabilitation prospects will have to be assessed, even if looking through a glass darkly. 3. Before any sentence can be made there are other questions to be considered relating to deterrence, discounts, where special circumstances are to be found and of course the ultimate length of term of imprisonment or other penalty be imposed. None of that can be determined until the primary facts are determined and as I say some of them are in dispute. What weight needs to be given to all of these matters against an imperative that all sentencing should have as its primary focus, the protection of the community will need to be determined. Facts 4. The agreed facts appear to be these: Grant Bartley aged forty-two years at the time of the offence knew the other offenders Samuel Weyermann aged twenty-two and J. P. aged twenty at the time of the offence. Early on Sunday 21 December the day before the robbery, J.P. drove to Lithgow to collect Bartley from the railway station and return him to Dubbo. There was a decision made that Weyermann, who had been released from prison some days prior, would be invited to join the enterprise. 5. J.P. drove to Mudgee to collect Weyermann and told him of the plan to do a robbery as they made their way back to Dubbo. After obtaining some food for Weyermann, J.P. and Weyermann drove to where Bartley was staying and collected him. It was decided that it would better to conduct the robbery the following morning. 6. The three offenders drove to Bartley's residence where Bartley entered his house, obtained a shortened firearm, ammunition and a pair of overalls to be worn by Weyermann during the robbery planned for the following day. J.P. and Weyermann left Bartley at his residence and drove to J.P's home where they stayed overnight. During that night J.P. cleaned the gun whilst Weyermann played an X-box video game and watched TV. 7. The following morning J.P. drove with Weyermann to Bartley's place where they waited outside until he came to the car at about 8.30am, they all then drove to Centrelink in the centre of Dubbo and whilst Bartley was at Centrelink, J.P. and Weyermann went to Coles where J.P. purchased some food. The three then met up and J.P. drove to Riverdale Shopping Centre where Bartley purchased a long neck of beer and J.P. walked across the street from the shopping centre to a camping shop where he purchased a black balaclava that was to be worn by Weyermann during the robbery. 8. J.P. drove Weyermann and Bartley to a spot near the Dubbo Railway Bowling Cub. Bartley told the other two 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. CCTV footage also shows J.P. entering the club and speaking with Bartley on two occasions prior to the robbery. At about 11.16 Bartley leaves the club, walks to where J.P. had parked the car and speaks to J.P. and Weyermann. Bartley then re-enters the club at 11.32. It will be noticed about an hour has gone by since Bartley first entered the club. At about 11.35 Weyermann enters dressed in khaki overalls and balaclava carrying a loaded shortened firearm. 9. At the time that Weyermann entered the club 58 year old secretary/ manager, Douglas Bourke, was in his office situated near the front of the entrance to the club. Weyermann approached him saying, "Money, money," pointing the loaded shortened firearm towards Bourke's torso. Mr Bourke told Weyermann that the money was in a safe and led him over to where the safe was down near the bar area. As Bourke led Weyermann towards the safe two other workers at the club, Steve Chapman and Cindy Kelly, who were working in that area assisted Bourke to give Weyermann a blue banking bag that contained $40,929.30 in cash. Weyermann then ran from the club to the outside and was driven from the scene by J. P. The CCTV footage shows Weyermann leaving the club at about 11.37, that is to say, the robbery took about two minutes. Bartley was present at the club during the robbery. 10. J.P. drove rapidly from the club. He stopped at a nature reserve where the gun used in the robbery was thrown into the river. J.P. then drove Weyermann to another location where shoes worn by Weyermann during the robbery and the blue bag that the money had been carried in were hidden in a table drain. J.P. then drove to his home where the stolen money, khaki overalls and balaclava worn during the robbery were hidden. 11. Silent security alarms had been activated during the robbery. Police attended the club within a very short timeframe and obtained a description of the robber. A magazine of ammunition was located at the scene. A description of the robber was broadcast to other police. On the basis of that description given, police came to a preliminary view that the robber was Sam Weyermann. 12. Meanwhile J.P.'s parents were at home when J.P. and Weyermann arrived back and observed J.P. to be in an extremely distressed state. J.P. told his father that he had been threatened by a man and made to drive to Brocklehurst. J.P.'s father contacted the Dubbo police and told them what he had been told by his son. He was advised that police would attend his premises shortly. When J.P.'s father contacted the police Weyermann was already a prime suspect for the robbery and police were able to ascertain that J.P. and Weyermann were associates. 13. Police phoned J.P's residence and spoke to him., He reiterated the false story of having been threatened by an unknown man and made to drive to Brocklehurst. Police arrived within a short timeframe. J.P. was observed to be distressed, Weyermann was also seen and identified. He was noted to have been trying to alter his appearance by cutting his hair. J. P. was spoken to away from Weyermann and nominated Weyermann as having been involved in the robbery as well as Grant Bartley. On the basis of that information Weyermann was arrested and taken to the Dubbo Police Station. The parents premises were searched. A bag containing the stolen money, overalls and balaclava were located by the father who was assisting with the search. All stolen money was recovered. 14. J.P. went with police, showed them where the gun had been thrown in the river. It was retrieved by police and examined and found to be a shortened .22 long calibre rifle Unique brand, self loading rifle and its serial number was intact. It is a prohibited firearm within the definition contained in the Firearm's Act 1996 primarily because of its being shortened. J.P. also showed police where Weyermann's shoes and the blue bag in which the money had been originally located were hidden. These items were recovered. 15. Weyermann was advised of his rights and agreed to participate in an electronically recorded interview in which he admitted in part the armed robbery but declined to nominate anyone else as having been involved. He was charged and was bail refused from that point until sentence. After the recovery of the items mentioned J.P. was advised of his rights and agreed to participate in an interview with police. He made admissions to his involvement in the offence including collecting Weyermann from Mudgee, driving to the club, driving from the club, the disposal of the gun and other items. J.P.nominated Bartley as involved in the enterprise. J.P. was charged and granted conditional bail. 16. The same day on 22 December 2008 police spoke to Bartley at the club soon after the robbery had taken place. He said he had not seen anything suspicious at the club prior to the robbery. Later police attended upon Bartley at his residence where he told police he did not know anything and had not seen J.P. that day. While they were there police obtained further information from the police radio system and that caused them to arrest Bartley, return him to the Dubbo Police Station. He declined to participate in an interview, he was charged and has been bail refused since that day. 17. On 20 February 2009 J.P., who was on bail, attended upon the police and participated in a further interview. In that interview he gave detailed accounts of the planning and execution of the robbery. J.P.'s version of the events has Bartley as the planner of the robbery, Weyermann as an enthusiastic participant and J.P. himself as the reluctant participant. Bartley contests that he was the planner. J.P. agreed to assist in the prosecution of the other two offenders. 18. Weyermann was further interviewed on 5 June 2009 by police. He again admitted his involvement in the enterprise and portrays J.P. as directing him what to do prior to the robbery... 19. On 13 May 2009 and 3 June 2009 Weyermann and J.P. entered pleas of guilty at the Local Court to charges of aggravated robbery and were committed for sentence... 20. Bartley was committed for trial on 7 December 2007. Bartley's legal representatives advised the Crown that he was to enter a plea of guilty by letter dated 24 November 2009. 21. FURTHER MATTER DISCUSSED BY HIS HONOUR 22. There are, as I say, some matters in dispute. What is in dispute between the parties are the following propositions: o Whether Bartley was the person who first proposed the robbery and his reasons for doing so and whether he continued to maintain a planning oversighting role in the robbery? o Whether Bartley and the others "cased" competing venues and, if so, the extent to which Bartley was involved in that casing? o What, if any, role Bartley played in the purchase of a black balaclava to be used in the robbery by Weyermann? o Whether Bartley had possession of a .38 pistol at the time of and before the robbery? o Whether J.P. had sought to pull out of the robbery, but had remained in the robbery at Bartley's urging? o Whether there had been any contact from J.P.'s phone to Bartley's phone shortly after the robbery? o Whether there is a phone call initiated by Bartley after the robbery to J.P. and if so the contents of that call? o Whether Bartley's role amounted to planner? o Whether J.P. was reluctant? 23. This last proposition can only be relevant if it reflects upon Bartley's criminality or perhaps J.P.'s credibility. 24. J.P. gave evidence. His evidence in respect of the robbery is unchallenged by any other evidence at the sentencing hearing, but was confronted and tested in cross-examination. 25. I should note J.P. was never asked to adopt his interview in any evidence, but he was asked if his statement of 22 February was true, but it was never tendered. Nor was he questioned in-chief by the Crown on any of the topics in dispute. Such evidence as I have of the disputed areas emerges in the cross-examination of J.P. In fairness I should note Ms Mendez was always aware the Crown could have called evidence from J.P. consistent with the challenged proposition in the original statement of facts. 26. I am satisfied J.P. has sought to minimise his role in, and commitment to the robbery, by claiming fear of and pressure from Bartley. I have certainly viewed his evidence through such a prism. Nonetheless I am satisfied the strength and direction of the robbery team came from Bartley and not from J.P. Bartley's claim to Probation and Parole of being incapable of saying no to participating in the offence, or "extremely fearful of his co-offenders" I am satisfied amounts to minimising of his true role and seeking to avoid full accountability for his criminality. 27. There is some truth in J.P.'s assertion to Ms Mendez in cross-examination that in his interview with police that he certainly "put Grant Bartley in". "The only thing that I changed was about myself." I am satisfied beyond reasonable doubt that J.P. nominated Samuel Weyermann to Grant Bartley as a person who may be interested in taking part in the robbery on the basis of his being recently released from prison. 28. J.P.'s nominating Weyermann to Bartley indicates the decision maker was Bartley. I am satisfied J.P. drove from Dubbo to Weyermann's home in Mudgee at the request of Bartley to persuade Weyermann to join them in the robbery. In that he was successful and returned to Dubbo with Weyermann. I am satisfied gun, ammunition and overalls for Weyermann were collected by J.P. from Bartley. 29. The first of Bartley's possession of a firearm came up in the second interview between police and J.P. It came up as a consequence of a direct question asked by police on 20 February 2009. "Q. At that point when Bartley does that is he in possession of a firearm?" J.P.'s answer was a simple "Yes". Thereafter he is asked to describe the weapon. From that description it emerges it is a handgun, indeed a pistol not a revolver. It was not a case of J.P.volunteering possession of a pistol without prompting. 30. I am satisfied Bartley did have a slide barrel pistol in his possession at the time of the robbery. By time of the robbery, I mean before the robbery and on the day of the robbery, and that he was in the Dubbo Railway Bowling Club when the robbery was being performed by Weyermann with the pistol in his possession. 31. However, what I cannot be satisfied of beyond reasonable doubt is whether Bartley had taken the weapon into the club for the purpose of providing backup in the event of encountering resistance. I am satisfied Bartley derived satisfaction from showing J.P.the weapon and having J.P. know he had taken it to the scene of the robbery as a means of "big-noting" himself in J.P.'s eyes. However it is a step too far on the evidence before me to be satisfied he was acting as a backup. There is no evidence Weyermann even knew he was there or that he had possession of a weapon. Bartley's conduct in being present at the robbery is equally consistent with his being in a position to have firsthand and immediate knowledge if the robbery failed and to retreat immediately from the scene. Indeed police questioned him initially as though he is nothing more than an observer of the robbery or present in the club at the time of the robbery. Nor on the evidence before me can I be satisfied beyond a reasonable doubt the pistol was loaded. 32. I am satisfied beyond reasonable doubt two bowling clubs were visited the night before the robbery. I am not satisfied beyond reasonable doubt that there was any intent to rob one or the other that night should an opportunity present itself. At the very least Bartley entered the Dubbo City Bowling Club and the Dubbo Railway Bowling Club with a view to familiarising himself with the layout of each as part of the pre-planning. I am satisfied at that point no firm decision has been made as to which one was to be selected. I am satisfied Bartley had a pistol on his person at that time. I am also satisfied that he had no intention of using it on the night. 33. The evidence before me establishes no more than he had a pistol as some form of comfort to him. I am satisfied Bartley rang J.P. at a time shortly after J.P. had told his parents a false story about his (J.P.'s) involvement with a person unknown who had a firearm. 34. I am satisfied he told Bartley that story as a means of trying to ensure that everyone involved in the robbery would subscribe to the same story if questioned by police. 35. I am satisfied Bartley said words to the effect, that he knew how much money was taken from there and it is likely he did, because he remained at the scene of the robbery and not to touch the money and to hide Sammy, meaning Weyermann. Each of these propositions was about Bartley's best interests. 36. There does not appear to be any evidence establishing any linkage between Bartley and the purchase of a black balaclava before me. There is no evidence that satisfies me it fell upon Bartley to persuade J.P. to remain part of the robbery team. There is no evidence before me that satisfies me J.P. phoned Bartley leaving a message for him on Bartley's mobile. Those were matters that were not canvassed in the hearing. Objective Criminality 37. When dealing with the objective criminality, I repeat remarks I made when sentencing Weyermann and J.P. on 1 April, 2010 commencing at Para: 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 on the overall sentencing outcome."