New South Wales District Court CITATION: R v KING, R v TRIEU [2010] NSWDC 245 HEARING DATE(S): 30 July 2010 13 August 2010 JUDGMENT DATE: 13 August 2010 JURISDICTION: District Court Criminal JUDGMENT OF: Berman SC DCJ DECISION: King : non parole period of two and a half years, and a head sentence of four and a half years. Trieu: non parole period of five years and head sentence of eight years. CATCHWORDS: CRIMINAL LAW - Sentence - Armed robbery - Loaded weapon - Aiding and abetting Lowe v The Queen (1984) 154 CLR 606 CASES CITED: R v White, unreported NSWCCA 23 June 1998 The Queen v Henry (1999) 46 NSWLR 346. The Crown PARTIES: Justin King Hy Trieu FILE NUMBER(S): 2009/00186152; 2009/00139109 Ms K Shead - The Crown COUNSEL: Mr N Steel - Offender Trieu Mr R Pontello - Offender King Director of Public Prosecutions SOLICITORS: Benjamin & Leonardo Criminal Defence Lawyers - Offender Trieu O'Brien Hudson Solicitors - Offender King SENTENCE 1 HIS HONOUR: On 26 May 2010 the jury found each of the offenders guilty of charges relating to their involvement in the armed robbery of the Royal Hotel at Paddington on 28 April 2008. The offender Hy Trieu was found guilty of being a principal in the robbery, whilst the offender Justin King was found guilty of aiding and abetting the offence. 2 Since their conviction two men have died in New South Wales during separate attempted armed robberies of those collecting cash, tragic reminders of the seriousness of offences such as these, which involve loaded firearms being pointed at innocent people. Often when sentencing for armed robbery we focus on the fears felt by the victims of the offences because most are not physically harmed, but it is important to bear in mind that on occasions the use of a loaded firearm will result in the death of a human being. Nothing I have said should be taken as meaning that these offenders will be dealt with more harshly than they would have been if the recent tragic events had not occurred, I merely refer to them to explain why it is that the court treat offences such as these as seriously as they do. 3 The primary evidence in the trial involving these offenders came from another person involved in the robbery, Robert McCarthy. He was a career criminal who agreed to give evidence for the prosecution. Of course I directed the jury that his evidence may be unreliable for reasons I identified in my summing-up, but much of what he said was supported by independent evidence, in particular call charge records showing highly incriminating contact. 4 In deciding questions of fact for the purposes of sentencing I also have to bear in mind the possibility that his evidence is unreliable. Having done that, and consistent with the jury's verdict, I make the following findings of fact for the purposes of sentencing the two offenders. 5 The offender King worked at the Royal Hotel for a period of about five years until he was sacked. He was a duty manager there and so came to know much about the operations of the hotel, in particular the procedures the hotel followed for banking the large sums of cash that it received. He clearly came into contacted with the offender, Mr Trieu, and provided him with information regarding the hotel's procedure, this information being useful to anyone who wished to rob people at the hotel. 6 The offender Trieu then contacted Robert McCarthy and together they planned to rob the hotel on the Monday after Anzac Day 2008, when the hotel would be holding very large amounts of cash. 7 The night before the robbery Mr McCarthy met up with both offenders at Burwood Park. Mr King gave Mr McCarthy information, which he had previously given Mr Trieu, concerning the hotel's operations, in particular he told him whereabouts on the premises the money would be kept, this was in a safe in a converted garage, with a roller door at one end. 8 The plan was that Mr McCarthy and Mr Trieu would gain access through this roller door by pretending to have a delivery for the hotel. Once inside they would produce Mr McCarthy's loaded sawn off rifle, grab the money, and leave in a Mitsubishi Evo, which Mr McCarthy had stolen. 9 At that meeting Mr King also told Mr McCarthy that if that plan did not work then as a back-up they could rob the person who came to the hotel to collect the money. Mr King described what that person looked like, told Mr McCarthy what time he would be there, and also described the vehicle he would be driving. Telephone records were particularly powerful in demonstrating that this meeting took place as Mr McCarthy said it did. 10 The following day Mr McCarthy picked up Mr Trieu early in the morning. They drove to the hotel and on the way collected some boxes which they would use as part of their plan to pretend that they had a delivery for the hotel. Mr McCarthy put his loaded sawn-off rifle into one of the boxes. 11 Mr Trieu then telephoned the hotel saying that there was a delivery. This excited the suspicions of the manager, Mr O'Carroll because he could never remember there being a delivery on a Monday. Instead of opening the roller door therefore he went out a side door, and walked around to the back of the hotel where he met up with Mr Trieu and Mr McCarthy. In evidence at trial he said that something did not feel right, and so he declined to accept the delivery and walked back inside the hotel. 12 The robbers plan A thus failed and they moved to plan B. They waited nearby for Mr Ward, the cash in transit man, to arrive. They saw him do so and watched as he entered the hotel. Whilst in the hotel Mr Ward placed about $50,000 cash into his backpack. The hotel had much more cash than that at the time but Mr Ward was only insured up to a limit of $50,000. Mr Ward left the hotel accompanied by Mr O'Carroll. 13 As they approached Mr Ward's vehicle the two robbers, Mr Trieu and Mr McCarthy, ran towards them. Mr McCarthy was pointing his sawn off rifle at Mr Ward who, very sensibly, immediately dropped to the ground, letting go of his backpack containing the money as he did so. Mr McCarthy kept watch while Mr Trieu retrieved the backpack and patted Mr Ward down in case he was armed, all he found was Mr Ward's telephone, which he removed from him. 14 The two robbers then ran back to the getaway car and drove away, throwing Mr Ward's mobile phone out of the car as they drove past Centennial Park. They went back to Mr McCarthy's flat where they divided up the money equally, with each of them setting aside a sum to pay Mr King for his assistance. 15 Of course the offences committed by both offenders were very serious. I have no doubt at all that Mr King knew that the robbery he assisted would be an armed robbery. Mr Trieu of course knew that Mr McCarthy was armed with a sawn off firearm. The potential for tragedy was clear, Mr McCarthy filled the fifteen shot magazine with ammunition and placed a cartridge in the breech of the weapon. All that was required for the gun to be discharged was the safety to be switched off and the trigger pulled. 16 Both Mr O'Carroll and Mr Ward gave evidence that one of the robbers verbally threatened them saying something along the lines of, "Keep your head down or get a bullet in it". Mr McCarthy denied that he said those words, or words similar. Not only did he deny that he said them at the Royal Hotel, but also denied that he said anything similar during any of the other robberies for which he was sentenced, despite apparently the victims of those robberies reporting similar verbal threats. 17 This is not a matter which I have to resolve. I have no doubt at all that the victims of the Royal Hotel robbery genuinely believed that there was a risk that they were to be shot, and indeed they genuinely believed that Mr McCarthy had verbally threatened them as they described. Perhaps, and just perhaps, it may be that they have imagined such verbal threats because of the situation they were in, face down on the ground with a dangerous looking weapon being pointed at them, but the source of their belief is largely irrelevant, what matters is that Mr McCarthy and Mr Trieu were responsible for that belief. It no doubt added to the terror which both of the victims must have felt. 18 Of course one of the most relevant factors concerning the sentences to be imposed upon the offenders concerns the objective gravity of their conduct. Precisely how it came about that Mr King told Mr Trieu relevant information so that the offence could be committed cannot be determined. There is no evidence one way or the other as to who it was who initiated the offence. It is possible that Mr King approached Mr Trieu suggesting that what he knew about the Royal Hotel could be used in the commission of an offence there. It is equally possible that Mr Trieu, knowing that Mr King had worked at the Royal Hotel, asked him about the procedures and the geography of the hotel so that the offence could be committed. 19 In other words I will not sentence either Mr King or Mr Trieu on the basis that they initiated the offence. Someone did, but I simply do not know who it was. However, no matter whose idea it originally was, Mr King's inside information was of substantial assistance. In particular it was he who told Mr Trieu about where the safe was, and other information which would not have been apparent to someone who merely sat outside the hotel observing the goings on. 20 Mr Pontello suggested whilst it was clear that Mr Trieu had some inside information, that might have been from someone else employed, or previously employed at the hotel. He relied on the evidence that Mr Trieu told Mr McCarthy that the inside information had come from someone who was previously employed as a barman, whereas Mr King was employed in a superior position. However given the fact that other things said about the person who provided the information, by Mr Trieu, matched the offender, and given the fact that Mr King's position required that he work behind the bar when necessary, it is somewhat fanciful to suggest that Mr Trieu's inside information came from anyone apart from Mr King. 21 Mr King may not have known the precise manner in which Mr Trieu and Mr McCarthy were to carry out the armed robbery, but he was prepared to provide information on the basis that he would leave the actual decisions as to how the offence would be carried out to others, thereby contemplating that it would be done exactly as it was, that is with a loaded firearm being pointed at people. Mr King was thus prepared to commit his offence knowing that it would be almost inevitable that people would be terrorised, and possible that they would be injured or even killed. Despite the fact that Mr King did not actually participate in the actual offence as a principal in the first degree, I am satisfied that his moral culpability is nevertheless very high. 22 As far as Mr Trieu is concerned it is apparent that he went into this very much with his eyes open as to what Mr McCarthy would do when they committed this serious offence. 23 There has been some controversy in the Court of Criminal Appeal regarding the extent to which a sentencing judge should look at the individual actions of those who commit offences together. Part of the controversy probably arises from the fact that there can be no blanket rule one way or the other. In some cases it will be relevant that a particular offender did not, for example, carry a loaded firearm, while his co-offender did. In other cases such co-offenders could be equally morally culpable, a lot will depend on the individual circumstances of each case. 24 In the present case I take into account that although Mr Trieu did not have a firearm during the course of the robbery, he was well aware, well before he committed the offence, that Mr McCarthy would be armed with a loaded firearm. There was no suggestion that Mr Trieu said to McCarthy anything like, "Make sure you don't pull the trigger", or even, "Do you think it would be better not to have the firearm loaded?" 25 Mr Trieu was also prepared to run the risk that Mr McCarthy would turn off the safety and pull the trigger injuring or killing someone. And similarly to Mr King, he knew at the very least, that their conduct would engender great fear in the victims of their offence. Mr Trieu's moral's culpability is therefore also very high. 26 If, during the course of the offence, Mr McCarthy had done something which had not been contemplated by Mr Trieu and Mr King then they would not be criminally responsible for it, but that is not this case. Everything Mr McCarthy did was contemplated by Mr Trieu, and everything that Mr Trieu and Mr McCarthy did was contemplated by Mr King. Apart from the fact that they had to move from plan A to plan B, everything that happened on 28 April 2008 happened as expected. 27 Mr King is now thirty-eight years of age. He has one prior matter on his criminal history, but that can be disregarded for present purposes. He was raised by his mother alone and has no knowledge of who his father is. He had a step-father for about six years, but for most of his upbringing he lacked a male role model. This unfortunate aspect of his upbringing however appears to have played little part in his offending. 28 Not surprisingly the offender is particularly close to his mother. He has not even told her about his present predicament. She was not present in court during the trial or sentencing hearing because she did not know anything about these proceedings. 29 He has two children, one of whom is fifteen years of age, to a former girlfriend; and a much younger son, presently five months of age, to his current fiancé. 30 The offender appears to have been a hard worker, and was, until I refused him bail on 30 July 2010, employed as a baggage handler and transport driver with Virgin Airlines. I will return to the circumstances surrounding his fiancé and children in due course. 31 Notwithstanding the offender's plea of not guilty, and his continuing refusal to admit his guilt, Mr Pontello asks that I find that there are good prospects of rehabilitation. One problem with that submission is that in the absence of an admission of guilt, or expression of remorse, there is little to suggest that the offender would not commit an offence in the future if the same circumstances presented themselves, see R v White, unreported NSWCCA 23 June 1998. Of course it is not impossible to say that there are good prospects of rehabilitation of a person, even though that person has denied their guilt, but according to the offender there is no need for him to rehabilitate himself because he has not committed the offence in the first place. 32 On the other hand I am entitled to look at his character, apart from the commission of this offence, and say that it is unlikely that he will do anything like this ever again. Perhaps the most telling factor suggesting that matter is that the sentence I impose upon him will no doubt act as a substantial personal deterrent to him ever doing something like this in the future. 33 There is no suggestion that there was any financial hardship affecting Mr King, nor that he had any other motivation for committing the offence, it simply being an easy way for him to make money. In this regard there is the somewhat remarkable proposition that he relied on the generosity of Mr Trieu and Mr McCarthy as to precisely what proportion of the proceeds of the offence he would actually receive. 34 The circumstances surrounding his fiancé and the offender's two sons are unfortunate. As I mentioned, the offender's second son was born recently. Even more recently the offender's fiancé was made redundant from her employment, and on top of that her father suffers from lung cancer, and her mother suffers from osteo-arthritis. She and Mr King have a significant mortgage and were relying on the offender's salary to pay it. 35 Mr Pontello, quite properly, does not suggest that there is exceptional hardship to any third party, however I will take into account the circumstances regarding the offender's family, and extended family, as part of the general mix of subjective factors, in determining the appropriate sentence. 36 Another matter which is related is that the offender will spend his time in custody harder than would otherwise have been the case knowing that his offending has led to significant hardship on those he loves and cares for. 37 I note that the offender and his fiancé made the deliberate decision to have a child despite the possibility that ultimately the offender would be sent to prison for what he had done. As Ms Caballero said in response to a question from the Crown Prosecutor during sentencing proceedings, "This was a planned pregnancy". There is something untoward about an offender and his loved ones creating a situation of hardship which they then seek to rely on. 38 On the other hand there is no evidence that Ms Caballero would be able to anticipate that she would be made redundant, and certainly no suggestion at all that they have decided to have the child deliberately as a means of getting a lower sentence in the event that Mr King was convicted. 39 Mr King is a man who appears to have made a terrible decision with significant consequences. It was a terrible decision not only because of its consequences for him, but also because of its consequences for the victims of his offending. 40 There was evidence before me that the offender is significantly depressed, but that appears to have been simply because of the prospect of him receiving appropriate punishment for what he has done. 41 Mr Trieu is thirty-six years of age. He was born in Vietnam and came to Australia by boat when he was five years of age. He is one of ten children with the result that, not surprisingly, his parents had to work long hours to provide for them. 42 He became a father when he himself was still a child. In order to provide for his first son he stopped going to school at the age of fifteen so that he could work instead. Since then he has been involved in a number of other relationships. He has four children in total, three with different mothers, and one grandchild. 43 He too appears to have been regularly employed and continues to work even though he is in prison. 44 He has more of a criminal history than Mr King does but, compared to this offence, his previous offending has been minor and dealt with in the Local Court. 45 He is involved in the community as well, particularly insofar as it concerns junior rugby league, where he coaches a junior team, and has put a great deal of effort into helping young boys, especially with their footballing abilities. 46 As with Mr King, he too continues to maintain his innocence. He, of course, is not to be punished for this. As I have pointed out when discussing this matter earlier, perhaps the most important circumstances in suggesting the unlikelihood of him committing similar offences in the future are firstly, that he does not have a history of similar matters in the past; and secondly, that he is likely to be personally deterred by the sentence I will ultimately impose upon him. 47 I should say something about the sentence imposed upon Mr McCarthy for his involvement in this offence. He was sentenced by another judge for a large number of armed robberies, for which the robbery of the Royal Hotel was but one. For reasons explained during the sentencing submissions, it was not surprising that neither Mr Pontello nor Mr Trieu relied on any principle of parity. Parity, as far as Mr McCarthy is concerned, only works one way. The Crown is not entitled to rely on the principle of parity to be found in Lowe v The Queen (1984) 154 CLR 606, and so I can put the sentence of Mr McCarthy to one side. 48 Ultimately the purpose of sentencing is to protect society and its members. Those whose job involves transporting large sums of money may not be vulnerable in the sense that they are powerless to defend themselves, but their occupation clearly puts them as risk of offences such as these. Those who seek to profit from robbing people in that position with a loaded firearm, and even those who are accessories before the fact to such offences, cannot really complain when sentences designed to deter others are imposed upon them. 49 Mr Pontello suggested that there were exceptional circumstances justifying the imposition of a sentence other than full time custody upon his client, I do not agree. This was not a young man who committed an offence out of desperation and who immediately regretted it, demonstrating remorse and rehabilitation afterwards. This was a man of otherwise good character who wanted to make some easy money, apparently caring little for the consequences of his offending, and apparently regretting only the consequences for himself and his family when it comes time for him to pay the price for what he has done. 50 Nothing less than full time custody is appropriate in those circumstances. In any case the length of the sentence I will ultimately impose upon Mr King means that alternatives such as periodic detention, or home detention, are simply not available. 51 Mr Steel, on behalf of his client, concedes that full time custody is the only appropriate sentence. 52 In determining the length of those sentences it is instructive to consider the guideline judgment for armed robbery offences to be found in The Queen v Henry (1999) 46 NSWLR 346. Of course it is to be immediately observed that the guideline postulated in that case is for a less serious offence than those committed by the present offenders. With that qualification, however, it is to be remembered that the Court of Criminal Appeal postulated a sentence of four to five years for offending in that category of case, which they described as sufficiently common for the purposes of determining a guideline judgment. 53 Unlike that sufficiently common case, neither of these offenders is young. Consistent with the offence for which they are to be sentenced, the weapon used was worse than that commonly used. The offence involved much more than limited planning. The amount taken was not small, and there was no plea of guilty. As to whether the victim of the offence was vulnerable, he had no means of defending himself against the weapon used against him. 54 The guideline judgment of Henry therefore would suggest a sentence significantly higher than that postulated in that case, at least as far as the principal Mr Trieu is concerned. 55 In each case there are special circumstances, a matter conceded by the Crown Prosecutor in her submissions to me. 56 The sentence I impose upon Justin King is as follows: he is sentenced to imprisonment. I set a non parole period of two and a half years, and an additional term of two years, making a total term of four and a half years. The sentence is to date from 30 July 2010, the day on which he went into custody after I refused him bail. His non parole period will expire on 29 January 2013, on which day he is eligible to be released to parole. 57 For the offender Hy Trieu I set a non parole period of five years and a head sentence of eight years. This sentence will date from 18 August 2009. His non parole period will expire on 17 August 2014, on which date he is eligible to be released to parole. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.