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." 31."The essence of "robbery" is that violence is done or threatened to the owner or custodian of goods who stands between the 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 the theft. Such conduct is grossly antisocial and that is the essence of its criminality. Theft is also 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 also a crime against persons as well." 32. "As this case illustrates the fear engendered is so real and 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 J.P. and Bartley as to how the robbery would be conducted and potential targets of that robbery. The discussion included the recruitment of Weyermann, that recruitment I am satisfied was sponsored by J.P. on the basis that he was close to Weyermann and could trust him. The recruitment was also delivered by J.P. Weyermann's criminality therefore has a much shorter history than J.P.'s, indeed in such planning as occurred after his inclusion into the criminal trio sees him taking direction rather than offering any." Bartley's Role 38. I am satisfied Bartley was the brains behind the robbery. I am satisfied the inspection of the two potential robbery victims' premises was organised at the request of Bartley, that he reconnoitred each of the premises alone and assessed security, location of important areas in the club. I am satisfied he selected the ultimate venue. He appears to have admitted as much to Probation and Parole. I am satisfied he knew at least one and probably more than one of the staff members. I am satisfied that that knowledge played in some part in his assessment of success and risks in robbing that establishment. 39. I am satisfied Bartley provided the firearm used by Weyermann in the robbery. I am satisfied Bartley orchestrated the allocation of duties so that he would be the one least likely to be caught or injured. I am satisfied he waited for some hours or so in the club until he was confident that it was the appropriate time, or at least the best time to conduct the robbery. I am satisfied he gave the go ahead to Weyermann to come on in once he, Bartley, had returned to the club. 40. I have found that Weyermann's movement from the car to the club with the firearm exposed presented danger to the public. I cannot be satisfied the same danger was present on the return trip because by that time the magazine had been dislodged, apparently fallen to the floor. There is no evidence, one way or the other, as to the presence of any round of ammunition in the firing chamber. 41. While Bartley is not strictly speaking a principal in the first degree - that person was there because of the tasks allocated to him by Bartley - in this case he shares equally the criminal responsibility of that offender. It is also to be remembered the firearm used was provided by Bartley. 42. Coming back to the remarks I earlier made in the sentencing of the other two at: 41. "The principal 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." 42. "These three victims, unlike bank tellers, were not working one out behind a till. There were other workers nearby. Any victim, however, is vulnerable when a loaded weapon is pointed at him or her. That the weapon was loaded necessarily aggravates the criminality, but I do not regard the victims as falling into that category of victims recognised as frail, isolated, lacking in power, before the weapon was produced. 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 seeking to stop the robbery. Not all armed robberies are committed in circumstances where the public is so endangered." 45. "The sum captured was substantial. Most robberies are robberies that have figures in the tens of dollars or hundreds of dollars. Nearly $41,000 was taken. That is certainly a medium sized robbery." 46. "There are three persons involved in its commission. While three were not present participating actively in the robbery the involvement of three seems to me to be an aggravating feature." 47. "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 desire for financial gain. 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 added to what was, by virtue of the weapon and demands, a tense situation. Put in another way, the violence was simply limited to the presentation of the weapon. I have noted already that it was a shortened firearm but that fact is an element of the aggravated offence and does not aggravate the total criminality of that aggravated offence." 49. "While I accept that Bartley was present in the club with the loaded pistol I have already indicated that I am not satisfied 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 Weyermann took any comfort from Bartley's presence, nor am I satisfied if things had gone pear-shaped that Bartley would have materialised from the crowd and contributed to Weyermann's cause. I have come to a view that Bartley has decided that anonymity was the best cause." Victim Impact Statements 43. There are victim impact statements which I intend to read. The material contained in these statements is not sworn evidence and has not been subject to cross-examination. To the extent that opinions are expressed in the statements I recognise they are not opinions of qualified experts. A victim impact statement coming as it does from the primary victims may, if I accept it as reliable, provide unsworn evidence as to the facts of offences and their effects upon the relevant witness. Functions of statements such as these is to give to victims the opportunity of being heard in sentencing proceedings, by publicly identifying the impact of trauma visited upon them by the actions of an offender. Secondly, impact statements enable the sentencing proceedings to assist victims as they move towards some closure of grief, resentment and brooding arising from the criminal conduct of an offender. Thirdly, a victim impact statement contributes to an offender at least hearing first hand and perhaps gaining insight into the impact his offending conduct had upon the victims. Finally, victim impact statements provide an opportunity for court officers, such as myself, to come to a greater understanding of the impact that crimes of violence have upon those who experience them. 44. There are, I think, three victim impact statements. Statement of 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." 45. There is another victim impact statement from Steven Chapman. Statement of Steven Chapman "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." 46. I should indicate lest it be thought I have taken into account adverse to the offender, that I do not regard the fear he has of people involved in the robbery trying to search for him as a fear founded upon justifiable facts, but rather an understandable reaction to his being a victim in the robbery. Subjective Matters 47. I turn now to the subjective matters, I am both entitled and required to do that. Not only am I sentencing for this criminal offence, but I am sentencing this offender for it. Each offender coming before a court varies from others who stand or who have stood for sentence. Circumstances personal to an offender may offer to a court some explanation and insight into the commission of this offence by him or some reason why a more or a less sentencing outcome is appropriate. Family Relationships and Background 48. Aged forty-two at the time of the robbery and forty-three going on forty-four at the time of sentence, Bartley is the younger of two boys. His brother Dale gave evidence in support of him. I understand their father was a truck driver. The offender had a close relationship with his father, no doubt cemented by frequently accompanying the father on road trips during school term. The family moved every nine months or so as the father chased work. Dale Bartley describes the father as a large fellow, home for a week and gone for a week. When Bartley was aged fourteen his father was killed in a road trauma. The parents' marriage had been a stable one. The father had children from a prior marriage, two older boys, both of whom had been sexually abusing Grant Bartley. That abuse ceased after the father's death. 49. Bartley's mother worked long hours. Grant Bartley says the mother was "emotionally unavailable to me" yet he also notes her use of coercive physical disciplinarian action towards him. It may be that what he means is that she was not emotionally warm towards him. His relationship with his brother became strained during their teenage years but has improved since. Nonetheless Grant Bartley moved out of home at the age of sixteen. 50. There have been three significant relationships in his life. With his first partner he had two children, now middle teenagers. There were drug and alcohol stressors in that relationship which lasted some six years. While they have parted, they are still friends. Next followed a four year relationship which produced a son now aged eleven. Again in their relationship there were drug abuse stressors. The most recent relationship has been ongoing for six years, again with substance abuse issues. The partners do not cohabitate. Her visits to him in custody have been limited. It seems he regards her support for him as less than enthusiastic. Education, Employment, Skills 51. Bartley has worked for a number of employers in a labouring capacity. Most of his work-life has been associated with rail maintenance, his last employment being in 2008. He claims an intention to pursue that form of employment post-custody release, which may be suitable, given he has on-the-job training and experience in that field. There has been some casual work as a cow-herder with a stock and station agency. 52. As a student he excelled in swimming, progressing to State and National levels. 53. Bartley has learning difficulties, the basis of the difficulties is not established in evidence; it is likely frequent changes of school, absences from class with road-trips and sporting commitments played their part. There are also intellectual deficits, which, no doubt played a part as well. 54. Also playing a part may well be some absence of intellectual stimulation as a child. General Health 55. There is evidence of a speech stammer. In 2008 there were a number of operations in respect of hernias. There was a period of concussion arising from a motor vehicle accident, but in respect of that, no medical treatment was apparently required. Otherwise, he appears to be in reasonable physical health. Mental Health Issues 56. Michelle Player, a psychologist, assessed him for the defence as having low-but-adequate social and intellectual ability. She noted he did not demonstrate any overt evidence of significant pathological symptomatology; she observed no disturbance to his thought process or language. He has been harbouring, within himself, issues relating to the sexual assault earlier referred to when he was early teens. That matter has now been ventilated with his brother who, likewise, experienced similar issues, very likely from the same relative. Even so, it may still be there is a need for some therapy before he can reach closure in respect of those assaults. 57. There are also issues identified by Ms Player, relating to when faced with challenging tasks and stressful events. She recommended learning effective stress-management strategies. Drugs And Alcohol 58. Bartley has been consuming alcohol since he was eighteen, drinking to excess, he says, from that time until he was twenty-four although, elsewhere, he admits to binge-drinking during stressful periods of his life. 59. His relationships appear to be with partners predisposed to drug and alcohol abuse; it is likely his heavy drinking went beyond just stressful days. He was, however, able to reduce his intake during supervision during Probation and Parole. At its worst, Probation and Parole report, twenty-four cans daily. He was a daily user of cannabis since eighteen. In 2008, for four months, though, he did not smoke because his then employers exercised a mandatory drug testing policy. Once, however, that employment ceased, and it is not known whether it ceased because of a desire to return to cannabis, he resumed, anyway, his addictive behaviour. 60. There is a history of amphetamine usage which has continued sporadically over the years. He claimed, to Probation and Parole, a drug debt to a co-offender because of his involvement to the drug culture. While I do not accept that he had a debt to the co-offender on that basis, the co-offender being identified as J.P, who, I am satisfied, was not a supplier of drugs, I do not rule out the possibility that he was involved in the drug culture to an extent that he may have had a debt of some kind. Nonetheless, I am not satisfied there is any causal link between either the offender's drug-use, or any money which he may have owed to J.P.from the sale of J.P.'s motor car for him, and the offender's involvement in this robbery. 61. I should note, Bartley completed a four-session Relapse Drug and Alcohol Prevention Program, which is a useful start, but hardly adequate to deal with the entrenched drug and alcohol abuse of over twenty years. Attitude To The Offence 62. I am satisfied this offence was committed for the financial gain at the time of the robbery, very few robberies are committed for any other purpose. I am satisfied it was committed a few days before Christmas, deliberately so; the care and selection of a recreation club at that time of the year was purposeful, the purpose being to maximise the size of the takings. I am not satisfied this offender is truly remorseful. I realise he is desperately sorry he was caught and is desperately sorry bail has been refused and he has been incarcerated; I have no doubt he understood the negative impact his incarceration has had upon his children and his relationship with them. He has certainly talked the talk to the Probation and Parole about empathy, but at the same time, he has sought to minimise his responsibility for their distress, claiming to be "extremely fearful" of his co-offenders, and, in a sense, seeking to get relief from his position at their expense. 63. One had only to see J.P. to understand how preposterous that proposition is, that this offender could be fearful of J.P. By the time Weyermann became involved, the die had already been cast for all but the final choice of the venue of the robbery. Character And Criminal Antecedents 64. Bartley is a forty-three year old father of three, who identifies as Aboriginal. His consumption of alcohol and drugs has been a factor in the non-survival of three relationships with the partners. 65. Until relevantly recent times, he has demonstrated a good work ethic. He has maintained links with, and looks to support from his mother and brother. His choice of J.P. a man twenty years his junior, as an associate, suggests a level of social isolation and desperation. While he has been before the Local Court before, this is his first appearance before the District Court; it is also his first time in custody. In 1984 he was before the Burwood Court of Petty Sessions in relation to driving offences. 66. It is interesting to note his criminal history, because it seems to indicate a number of venues which may well be a number of places he was then residing: 84 Burwood; 1991 before the Dubbo Local Court for drink/drive and other driving offences; in 1994 before the Coffs Harbour Local Court for drug possession; in 2000, the Bankstown Local Court for larceny; in 2001 before the Penrith Local Court for goods in custody and drug possession; in 2002, Newtown for unlawful possession of ammunition and drugs possession x 2, and possession of an unregistered firearm. In 2004, again, for drug possession, I forget which court that was, and in 2007 I think at Dubbo for possessing prohibited drugs. In nine court appearances he has received a suspended sentence of six months, that is, one term of imprisonment which was suspended and fines totalling about $4,000. Rehabilitation Prospects 67. His possession of a prohibited firearm in 2002 which was a homemade affair and again in 2008 in connection with this offence is a worrying portent. His long association with drug and a history of excessive alcohol consumption likewise are worrying. To the extent that recent past behaviour is a predictor of future behaviour the signs for strong rehabilitation are poor. 68. On the other hand he has been offered support from a brother whose lifestyle appears substantially different from the offender's. Should he accept the support, his prospects would appear to be more encouraging. Given his intellectual deficits and unresolved issues regarding past sexual abuse and perhaps relationship breakdowns he would need counselling and support upon release. I have noted he has already completed a four session drug and alcohol prevention course. He has also done a three session anger management relapse prevention course. Again, a useful start but by no means the answer to years of relevant unfortunate conduct. Both courses indicate some willingness though to address these issues and that is a positive rehabilitation factor. I would assess him as having some prospects of rehabilitation. Parity 69. J.P. received for his involvement a suspended sentence of two years. The suspended sentence was made possible because of a very substantial discount to his sentence on account of his early plea, contrition and assistance. J.P.'s starting sentence prior to discount was four years imprisonment. Weyermann's starting point for his role was six years. That was reduced by twenty-five per cent to a four and a half year global sentence. Bartley's role is defined in this hearing is substantially greater than J.P.'s. I have difficulty though in assessing it as equal to Weyermann's. Although Weyermann's involvement spanned a far less period of time he was the gunman and the confronter of the staff. True, he was there at the behest of this offender, he was armed and clothed by this offender, he was at a place that this offender had selected. Weyermann had a criminal record more substantial than the offender's, there was a specific feature of aggravation in his conduct, namely, he offended whilst on parole. In those circumstances I have determined Bartley's starting sentence should be less than Weyermann's but greater than J.P.'s. Deterrence 70. The sentence I am imposing is a substantial term of imprisonment consequently it has built into it a component of general and personal deterrence. Maximum penalty for this offence is one of twenty-five years imprisonment. That is so because the weapon used in the robbery as I said earlier was a dangerous weapon that being the shortened firearm and this armed robbery then is in the aggravated form. Plea Of Guilty 71. Bartley was committed for trial, he pleaded when arraigned before King DCJ in early December 2009. His sentenced was likely to be delayed because of the contest of some aspects of his role in the robbery. On that contest he has, in fact, been vindicated on a number of matters which I earlier referred to. He is, of course, perfectly entitled to contest aspects of the Crown case against him. Such a decision, however, does deprive him to some extent of the utilitarian value of the plea. Even though in some respects as I say he was vindicated. By 22 February 2009, J.P. had indicated a willingness to give evidence against him. It is appropriate for the court to recognise the utilitarian value of Bartley's plea. It reduces prospects of a conviction appeal. It saves court time. It saves resources of prosecution and defence. It resonates with a community anxious to see those guilty of crime held accountable for it and it indicates this offender's willingness to be held accountable for his offending conduct at some level. 72. When I take into account the offender's level of remorse earlier dealt with I would allow a discount of 17.5 per cent on the sentence I otherwise would have set. That sentence, that is, that overall sentence I would have set is one of five years imprisonment. If I discount that by 17.5 per cent and round the discount out it becomes a total of eleven months discount. Thus the overall sentence I will be setting is one of four years and one month. Custody 73. The offender has been in custody since his arrest on 22 December 2008. The sentence will date from that date. 74. Would you stand up please, Mr Bartley? 75. Grant Bartley, you are convicted of the offence that you on 22 December 2008 at Dubbo whilst armed with a dangerous weapon, namely, a .22 calibre sawn-off unique round pump action rifle did rob Douglas Burke of $40,929.30 in Australian currency which was the property of Dubbo Railway Bowling Club Limited. For that offence you are sentenced to a non-parole period of two years and one month commencing on 22 December 2008 and expiring on 21 January 2011. Your balance of term is one of two years expiring on 21 January 2013. The sentence ends up on the minimum term as one month more than Weyermann's but the overall sentence is five months less than Weyermann's. 76. Would you sit down please? 77. What I want to tell you now is this, that normally I can give parole if the sentence is three years or less. In your case I cannot do so. Your parole will be determined by the Parole Board. The Parole Board do not necessarily release you on the first day you are eligible for parole which is January next year. You have to convince them that you are well on the road to rehabilitation, that you are not a danger to the community, that is their first test, and that you are not a danger to yourself. If you convince them of those two things you should obtain your release. You probably know and if you do not I will tell you that if you miss out on the first time you make an application for parole you have to wait a year before you apply again. It is up to you whether you persuade the Parole Board that you are fit and ready for parole. 78. Criteria are two, is he a danger to the community, is he a danger to himself? If you have a place to live, you have a job to go to, you have work skills you may well persuade the Parole Board that you are a fit and proper person to be released, I can do nothing about it. Any other order? CROWN: No other order, your Honour, there was just one part you advanced I would like to take your Honour to. Your Honour, the first remark your Honour made in relation to J.P.'s evidence was that the Crown did not question him about the topics of dispute. There was a reason for that, your Honour, because there's a Crown bundle including a statement he made covering those areas that he adopted under oath. That is the statement dated 29 December 2009. HIS HONOUR: Yes. CROWN: Your Honour then went on in your remarks to say there was no evidence-- HIS HONOUR: I withdraw that. Tab 5, I have seen it, yes. CROWN: --yes, of a linkage between Bartley and the matter Clarver (?) that's at paragraph 12 of that statement where Bartley is asserted to have told J.P. to purchase it, directed him to do so. The other aspect was that he persuaded J.P. to take part and J.P. was reluctant, that's paragraphs 14 to 15. HIS HONOUR: Thank you. Any other matter? Thank you for that, Mr Crown. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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