District Court New South Wales Medium Neutral Citation: R v Franjo Vlado SANTALAB [2012] NSWDC 266 Decision date: 22 June 2012 Before: Cogswell SC DCJ Decision: Sentence of 5 years imprisonment. Non-parole period 2 years, 3 months. Catchwords: CRIMINAL LAW - Particular offence - attempted robbery armed with dangerous weapon - offender provided weapon used to hold up armoured van - Sentence - relevant factors - breach of trust with employer - non-exculpatory duress in mitigation of sentence - offender vulnerable - duress serious - impact on offender's motivation to commit offence - nature of offender - no prior convictions - of good character - response to charge - late plea of guilty - 10 per cent discount - genuine remorse, shame and humiliation for involvement - low risk of re-offending - reduction of non-parole period - special circumstances found - custody more difficult - ex-police officer, dyslexia and weak short term memory. Legislation Cited: Crimes Act 1900 s 97(2) Crimes (Sentencing Procedure) Act 1999 s 23 Cases Cited: R v Barker (Court of Criminal Appeal, 27 October 1997, unreported); R v Brown (1986) 43 SASR 33; R v Day [2009] SASC 84; Tiknius v R [2011] NSWCCA 215. Category: Sentence Parties: Regina (Crown) Franjo Vlado SANTALAB (Offender) Representation: Counsel: M L Barr (Crown) G Heathcote (Offender) File Number(s): DC 2010/251382 REMARKS ON SENTENCE 1I am sentencing a man in his mid thirties who provided the 9 millimetre Glock pistol used to hold up a cash transit van. The attempt proved tragic when the robber who had the pistol was shot dead by one of the guards. An innocent bystander was injured as well. The man I am sentencing has been assessed as of average intelligence which brought about reading difficulties. These problems led to serious bullying at school and significant frustration in his career prospects. He says this vulnerability was exploited by serious threats by those who organised the attempted robbery. I have to assess what impact these threats along with other factors should have on the sentence which I impose. 2The man's name is Franjo Vlado Santalab and he is now 34. He was charged with a crime known as accessory before the fact to a serious indictable offence, namely attempted robbery armed with a dangerous weapon. That is a crime against s 97(2) of the Crimes Act 1900 and Parliament regards it as so serious that it has fixed a maximum of 25 years imprisonment to the crime. 3I will first briefly review what happened to bring about the offence and then look at factors personal to Mr Santalab before considering the arguments put forward by Mr M L Barr of counsel who appeared as Crown Prosecutor and Mr G Heathcote who appeared for Mr Santalab. 4Mr Santalab had joined the New South Wales Police Force, which was one of his main aims in life, around 2002. However he had to resign a couple of years later. He was assessed by doctors as being of average intelligence but with significant difficulties with working memory, reading accuracy, reading comprehension and spelling. He also had dyslexia and a very weak short term memory. It was considered inadvisable for him to be in a position where accurate reading and writing skills were required. 5Some years later he started working for Brinks Security. His first day on the job was 5 January 2010. He worked as a guard and a messenger. I should add that for some time Mr Santalab has been a registered gun owner and a licensed user of weapons. One of his hobbies is shooting. At Brinks he met Nathan Brodbeck and Russell Holmes. They had been working at Brinks since 13 October 2009. However they finished on 1 April 2010. They set up their own security business and Mr Santalab did some work for them. 6What was also happening on Mr Santalab's personal front is that his wife had become pregnant, but the child was stillborn. This had a very significant impact on Mr Santalab. 7Going back to the circumstances leading to the attempted robbery, Mr Brodbeck had been in touch by text message with Mr Santalab, obtaining information about the runs that the trucks with Brinks would be doing on a particular day. One of the runs was known as run 11. Mr Santalab had done it many times. It is described in exhibit A (the agreed facts) as including "pick ups from the RSL" twice a week. The takings were usually in the order of over $700,000 on a Monday. 8The robbery was evidently planned by Mr Holmes and Mr Brodbeck. Mr Brodbeck, as it turned out, was the person who would be at the scene and threatened the guards and obtained the money. Obviously a weapon was needed for the attempt. When I say obviously, I am not condoning that but it was, I assume, obvious for those who wished to rob an armoured van. What Mr Holmes then did was to approach Mr Santalab for the use of one of his weapons. That was in order to avoid using one of his own weapons. Mr Holmes was apparently also a licensed gun holder. Mr Santalab declined. He said that there was no way that he would supply the weapon. The request had been made the week before the robbery which occurred on Monday 26 July 2010. When Mr Santalab declined, Mr Holmes threatened him. The threats he gave evidence about on 20 April 2012. I will set out this passage from the transcript - "Q. What did you understand, after you told Mr Holmes that you didn't want to give him one of your guns, what did you understand that he knows where your mother and sister and wife lived, and he told you the places? A. Something incredibly bad was going to happen to my family. Q. What was that? A. Either they will get hurt or killed. Q. Then it says you said, 'I will give it to you.' Do you see that in (d)? A. Yes. Q. Did you say that to him then? A. Yes. Q. Why did you agree at that stage to give him one of your guns? A. I was concerned for my family." 9Mr Santalab also said in evidence that he had been told by Mr Holmes that the robbery would be on run 11 "but he would be organising for people in the police force to make sure that there was no cops in that area when it happened". 10Mr Santalab said that the threats included references to an outlaw motorcycle gang. Mr Santalab had seen things which associated the gang with Mr Holmes who was making the threats. In addition to that, it gave him the impression that Mr Holmes had contacts within the police. When Mr Holmes issued the threats he made reference to the addresses of Mr Santalab's sister and mother. Mr Santalab was very concerned when he did not recognise the address given by Mr Holmes for his mother. He checked a short time later and discovered that his mother had very recently moved to the address which he had been given by Mr Holmes. It was in those circumstances that Mr Santalab provided his weapon to Mr Holmes. 11The weapon was not loaded at the time it was provided. Not only that, but Mr Santalab ensured that it was what he called "key locked", which meant that it could not be unlocked without a key which Mr Santalab said he did not provide. There It should be noted, however, two things. One is that the weapon was indeed still unloaded when discovered at the scene. The second is that the weapon was in fact unlocked. 12The attempted robbery happened at about half past one on Monday, 26 July. There was a messenger and a guard in the Brinks Security truck which, as expected, picked up the money from the RSL. Mr Brodbeck was standing nearby. He was wearing, according to the agreed facts, "sunglasses, gloves, a hood and fluro worker's safety vest. There was construction going on next to the RSL and many of the workmen wore fluro vests." As the guard and the messenger were coming towards the truck with the money Mr Brodbeck stepped on to the footpath, "yelled something loudly and ran towards" the messenger. Mr Brodbeck had a gun facing the messenger's head and he was yelling whilst running with the gun. The messenger dropped the money and ran for cover towards the truck. At the same time the messenger pulled out his firearm and discharged it. One shot hit the ground, one hit Mr Brodbeck in the chest and another hit an innocent bystander in the ankle. The whole incident apparently took only two seconds. Mr Brodbeck died shortly after from the chest wound. The bystander was treated by doctors. 13Mr Santalab spent the next 24 hours in a state of panic and confusion and at 6.30am the next morning he was found in a car incoherent and semi-conscious. An ambulance was called and they found empty packets of medication. Mr Santalab was taken to hospital for a few days. 14Mr Santalab acknowledged in evidence that he had known about the proposed robbery some two weeks before it was due to occur. However, the approach about the weapon occurred within a shorter period of time which I cannot specify but probably late in the week before the robbery. 15I turn now to refer to some matters personal to Mr Santalab himself. Mr Santalab provided a detailed statement which he confirmed under sworn evidence and his mother did the same when she gave evidence. He has a good reference from a person who feels sure that he will make a success of future opportunities. He also has a reference from a former employer. 16Part of the material tendered by Mr Heathcote was a psychiatric report from Dr Selwyn Smith, a consultant psychiatrist. Dr Smith referred to the fact, as Mr Santalab did, that he had separated from his wife and that they had significant personal issues regarding children - they had no children. He does not indulge in alcohol, cigarettes or drugs of addiction. Dr Smith expressed the opinion that Mr Santalab "displays diagnostic criteria for the following psychiatric disorders" - he then mentioned dyslexia, a major depressive disorder and relational problems in the sense of difficulties within his marriage. He also expressed the opinion that Mr Santalab, because of his reading disorder, "experienced significant difficulties with academic achievement." In addition he had difficulties in his activities of daily living where these required reading skills. He had been subject to "considerable bullying, taunts and abusive behaviour inflicted on him by others at school". The psychiatrist reported that Mr Santalab's period at school was most unhappy for him. 17The doctor noted that Mr Santalab has expressed a significant degree of shame and remorse as well as humiliation for his involvement in the offence. I have heard evidence from Mr Santalab and I am of the same opinion. In particular, he expressed much concern about the injury to the innocent bystander. Dr Smith went on to express the opinion that at the time of the commission of the offence Mr Santalab was suffering from the psychiatric disorders which he had diagnosed. In addition, because of his psychiatric vulnerabilities and his low self-esteem and lack of self-confidence - combined with his previous work in security and the police - Dr Smith thought that "it is more likely than not that his inevitable incarceration will be more onerous than it otherwise would have been". He should get further treatment Dr Smith thought. He added the opinion that Mr Santalab was "at a low risk of recidivism". As Dr Smith said and I find, he has no previous convictions. I also would regard his risk of re-offending as low given the circumstances of the offence. 18When Mrs Santalab gave evidence she confirmed that she had moved only a short time before her son contacted her to check her address. There is some prospect of Mr Santalab obtaining employment with his brother who works in Western Australia. He is otherwise supported by his family. 19Turning now to the arguments put forward by both counsel, Mr Heathcote emphasised the fact that the weapon was both unloaded and locked when it was handed over by his client. He emphasised the significance of the aspect of duress. He referred me to the Court of Criminal Appeal's decision in Tiknius v R [2011] NSWCCA 215. In his judgment, Johnson J (with whom Tobias AJA and Hall J) agreed very helpfully reviewed the law on what is called "non-exculpatory duress in mitigation of sentence". The reason his Honour refers to it in those terms is of course that duress can be a complete defence to a crime. In effect, if somebody is forced to commit a crime it can mean that they are not guilty of the crime. However it may also be taken into account in sentencing the person. In this case Mr Santalab, by his plea of guilty, has acknowledged that the duress to which he was exposed was not sufficient to amount to a defence. Duress in sentencing is relevant to assessing how serious the crime committed was. That is because it is relevant to the motivation behind committing the crime. It is also relevant to take it into account as part of the mix of factors which are personal to an offender. 20One observation which was made in the Court of Criminal Appeal of South Australia in R v Day [2009] SASC 84 was quoted by Johnson J and is part of the reason that I made the finding concerning Mr Santalab's unlikelihood to re-offend. Johnson J extracted (at [41] of his judgment) a passage which included the following - "The fact that the offence has not been committed out of motives of greed or malice but rather out of fear may carry with it the consequence that if the cause of the fear is removed, the offender will be unlikely to offend again." As Johnson J said, I must include amongst the matters that I take into account in assessing the impact of duress on the sentence, the form and duration of the offender's conduct as well as the nature of the threats and opportunities which were available to report the matter. 21However the role of sentencing in stopping others from committing similar crimes, generally referred to as general deterrence, is also important. Johnson J at [50] referred to a proposition stated by King CJ in the Supreme Court of South Australia, in R v Brown (1986) 43 SASR 33. Johnson J extracted the following passage - "The ordinary way in which a citizen renders ineffective criminal intimidation is to report the intimidators and to seek the protection of the police. That must be assumed, under ordinary circumstances, to be an effective means of neutralizing intimidation. If it were not so, society would be at the mercy of criminals who could force pawns to do their criminal work by means of intimidation." 22I find in this case that the duress was serious and effective. However that includes assessment of the fact that it had an impact on Mr Santalab's motivation. But I also need to bear in mind that he had plenty of time to seek assistance, for example, from the police. That needs to be seen in the context that the threats included Mr Holmes saying that he had contacts within the police force. But as Mr Barr pointed out, Mr Santalab had himself been a police officer and would be familiar with the appropriate channels to make those inquiries. The threats were reinforced effectively by Mr Holmes disclosing information about the location of his family's addresses which was later confirmed by Mr Santalab himself. However on the other hand, so far as the nature of Mr Santalab's conduct is concerned, it lasted for some days in that he handed the weapon over on the Saturday before the Monday. He had known about the threats for some days and could have used that time to make inquiries or to find out the appropriate people to contact within the police. 23I accept that Mr Santalab is a person of good character as Mr Heathcote invited me to find. That means in turn that I can put more weight on the evidence which he has given. I take into account in general terms the fact that he has a hard life and that he was vulnerable to the threats. On the other hand I need to bear in mind that vulnerable persons are often selected by manipulative criminals to join in their criminal work. The sentence needs to take into account the fact that people of that kind have to be aware that their conduct is regarded as seriously criminal. However he was, as Mr Heathcote submitted, ideal to be manipulated. 24There was involved a breach of trust with his employer Brinks which was frankly acknowledged by Mr Heathcote. Mr Heathcote argued that his client's plea of guilty was relatively late, but that it should still attract a discount of 10 per cent. Mr Barr did not take exception with that estimate and in due course I will discount the sentence by 10 per cent to reflect the fact that by pleading guilty instead of facing trial Mr Santalab has saved the justice system considerable time and other resources. Mr Heathcote argued that there were special circumstances for me to adjust the normal relationship between the head sentence and the non-parole period. I accept that submission and will return to it shortly. 25Mr Barr tendered exhibit B. That was an envelope which was relevant to matters under s 23 of the Crimes (Sentencing Procedure) Act 1999. I have considered that but find that the level to which I can take it into account is minimal. 26I regard Mr Santalab's prospects of rehabilitation as good and his remorse as genuine. 27I need also to take into account that there is a diagnosis from the psychiatrist that he was suffering from some mental health issues at the time that he committed the offence. However I do not give significant weight to that factor. 28On the aggravating side of the offence, I accept Mr Barr's submission that the offence involved the threatened use of a weapon and a grave risk of death. It is important in this context to refer to remarks made by Gleeson CJ (when his Honour was on the Supreme Court of New South Wales) in R v Barker (Court of Criminal Appeal, 27 October 1997, unreported). His Honour said towards the end of his judgment the following - "I will only mention one particular aspect of the objective circumstances of the offence to which attention must be paid. As Judge Sinclair pointed out, to participate in the planning of an armed robbery where the object of the robbery is going to be cash guarded by armed guards is to engage in an enterprise which is highly likely to result in a shoot-out." In this case not only was there a shootout which was clearly likely but the shootout resulted in the death of a person and the wounding of an innocent bystander. The offence involved, in other words, the grave risk of death to persons as well as the threatened use of a weapon as distinct from it simply being carried. 29I come now to consider the appropriate sentence which I should impose on Mr Santalab. Taking into account all of the matters which I have referred to, I would regard an appropriate overall sentence as one of 6 years imprisonment. I would discount that by 10 per cent to reflect the fact that Mr Santalab has pleaded guilty. Although that amounts to a sentence of just under 5½ years, I am going to round that down to a sentence of 5 years imprisonment. 30Normally a sentence of 5 years imprisonment should include a non-parole period which represents 75 per cent of the term which would be 3 years and 9 months. However I propose to alter that percentage in this case. That is because of the factors referred to me by Mr Heathcote which I regard as special circumstances warranting that adjustment. I take into account the conditions in custody which Mr Santalab will experience because of his past employment and because of his vulnerability. I also take into account the opinion expressed by Dr Smith that the period in custody will be more difficult because of his condition. For that reason I propose to reduce the non-parole period by just over 50 per cent and fix the non-parole period as 2 years and 3 months. 31The sentence will commence on 13 May 2012 and expire on 12 May 2017. The non-parole period will commence on 13 May 2012 and expire on 12 August 2014. HIS HONOUR: Now in a moment I will explain that to Mr Santalab. But I want to know first whether there are any factual matters that should be corrected. I do not mean legal points or legal errors, just any factual references. BARR: No your Honour, not from the Crown's point. HEATHCOTE: No your Honour. HIS HONOUR: And the second thing is the commencement date. Are you both in agreement on that as 13 May? HEATHCOTE: 13 May yes. HIS HONOUR: Yes and I think it's correct. So 13 May 2012 to 12 May 2017 and a non-parole period of 2 years and 3 months, commencing 13 May 2012, expiring 12 August 2014, is that correct? BARR: Yes your Honour. HIS HONOUR: Mr Heathcote? HEATHCOTE: Yes we agree. HIS HONOUR: Now do you have instructions on whether I-- HEATHCOTE: The report - I've got instructions that your Honour can send that along. HIS HONOUR: Thank you. I will take - it's part of exhibit 1. What I'll do is I'll take the exhibits back to chambers and ask my associate to email or fax - she has the contact - Dr Smith's report. I will do that. 32Mr Santalab for the reasons that I have been giving you have got a sentence of 5 years imprisonment for the crime which you committed. I backdated it by a month and eight days to take into account the time you spent in custody. So that starts on 13 May 2012. So the overall sentence finishes 5 years after that on 12 May 2017. You must spend 2 years and 3 months of that in gaol. That is the minimum term. That will commence on the same day, 13 May this year, and will expire on 12 August 2014. Whether you get parole or not is not up to me but up to the Parole Authority. They assess whether you are eligible for parole or not at that stage. HIS HONOUR: Do you understand? OFFENDER: Yes your Honour. HIS HONOUR: Is there anything else Mr Barr or Mr Heathcote? BARR: No your Honour. HEATHCOTE: No your Honour. HIS HONOUR: Thank you both for your assistance. Mr Santalab can be taken down. ********** 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. Decision last updated: 13 March 2013