District Court New South Wales Medium Neutral Citation: R v Craig Raymond Francis [2019] NSWDC 17 Hearing dates: 4 February 2019 Decision date: 14 February 2019 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentence. For orders see [56] Catchwords: Conspiracy to commit armed robbery Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Henry (1998) 46 NSWLR 346 Category: Sentence Parties: Regina (Crown) Craig Raymond Francis (Offender) Representation: Counsel: Mr R Hewson (Offender) Solicitors: Ms L Burgoyne, Solicitor ODPP (Crown) Mr R Day – Absolve Legal (Offender) File Number(s): 18/103451 Publication restriction: Nil Remarks on Sentence 1. The offender pleaded guilty to an offence of conspiracy to commit a robbery while armed with a dangerous weapon, which occurred on 3 April 2018. The offence is a common law offence and the substantive offence is to be found in s.97(2) of Crimes Act 1900. The maximum penalty is therefore at large and there is no prescribed standard non- parole period. 2. The offender was arrested on 4 April 2018 together with three co-offenders, namely, Steven Craig Francis (the offender's son), Dale Donnelly and Dean Schumertl. The offender has been in custody since his arrest on 4 April 2018. 3. The offender was born in 1962 and is now 56 years of age. The sentence hearing 1. The sentence hearing took place on 4 February 2019. The Crown Sentence Summary became Exhibit A. It included an Agreed Statement of Facts. That document comprised 16 pages and outlined much of the evidence the Crown relied on by way of recorded conversations between the offender, his co-offenders and an undercover police operative ("UCO"). 2. The Agreed Facts in respect of this offender may be summarised as follows. The offender had previously owned a company named Forster Palms Security which conducted cash-in-transit services collecting cash from various licenced premises in the Forster-Tuncurry area and conveying it to the bank. The company provided those services for many years up until 2013. In October 2013 the offender was arrested and charged with stealing $10,000 in cash from a club in Tuncurry, having collected it as part of his security business. 3. In March 2018 Police began monitoring movements and activities of the offender and his son Steven. On 18 March 2018 the co-offender Steven Francis met the UCO and he outlined to the UCO a planned robbery to take place on the first business day after the Easter public holiday by robbing a cash-in-transit vehicle at an RSL club in Forster. He told the UCO that he expected there would be $200,000 to $250,000 in cash, that there would be a guard on the vehicle but that the guard would not be armed. He told the UCO of his father's involvement in the cash-in-transit business previously. 4. Steven Francis told the UCO that the offender will probably want a cut of the proceeds and that he has told his father how much they can expect to gain from the robbery. Steven Francis outlined the plan for the armed robbery and the UCO showed him firearms located in the UCO's car. 5. On 28 March 2018 the UCO met Steven Francis and another co-offender, Dale Donnelly, in Forster when they discussed the details of the plan to commit the armed robbery. During that meeting, whilst the UCO was out of the room, Steven Francis described the offender as a silent partner and said his father was already the focus of police attention, having been questioned about a recent robbery at another club. 6. During the further lengthy conversation with the UCO and co-offender Donnelly about the detail of the planned robbery, Steven Francis informed them that the offender had suggested that a hoax call be placed to police shortly before the offence so that police resources were diverted away from Forster to Blackhead. Steven Francis said that his father had agreed to make the call. After that meeting the three men drove around Forster with Steven Francis showing the others the cash-in-transit route. They then drove to the RSL Club and through the carpark where Steven Francis informed the others about the location of CCTV cameras and indicated where staff parked their vehicles. The three men agreed to do a dry run the day before the robbery on 2 April 2018. The co-offender Donnelly agreed to purchase clothing and masks for all of them. 7. At 4.50 pm that afternoon, the UCO and Steven Francis met the offender near the Nabiac Hotel. The offender provided the two men with detailed information about cash-in-transit operations in the Forster area. He explained the system changed after he stopped doing it. He said that the Sports club now takes cash to the RSL so that the RSL has both Sports club and RSL Club money. He warned that the club may do an ATM drop on the Sunday, if they had too much cash over the long weekend. The offender said he was not going to be at the club for the robbery itself, but would take part by making the hoax phone call diverting police away from the scene. He told the men that he would call police and say that he has seen "a group of blokes with balaclavas on." 8. At the end of the meeting the UCO said that he would be back on Monday 2 April and they should all meet up to get everything sorted, to which the offender said "Yep, sounds good". The offender said to the other two men, "We'll go and have a look tomorrow, you know and um make sure they come out either at the back or down the front. If they come out the back it's perfect. They have more cameras at the front than the back." 9. On Saturday 31 March 2018 the co-offenders exchanged messages about the clothing and on 1 April 2018 Steven Francis and the UCO exchanged text messages confirming their meeting the next day. 10. On 2 April 2018 the three co-offenders met in Forster. Steven Francis indicated he had spoken with the offender who was ready to make the hoax call to the police. The two co-offenders and the UCO then conducted a dry run of the robbery, driving into the carpark at the RSL Club and discussing how the robbery was to unfold and the getaway route. Later that night, there was an SMS exchange between the offender and his son Steven confirming that the offender would make the hoax call at 9am and that he would meet Steven at Bulahdelah after the robbery. 11. The next day, Tuesday 3 April 2018 at 8.26am, Steven Francis phoned the offender and in a recorded conversation confirmed that the offender was to make the hoax phone call at 9am. The offender agreed to meet his son at the old service station at Bulahdelah after the robbery and agreed that after he had made the call, he would send a message namely "Yes". 12. The co-offender Steven Francis explained to the UCO that the offender would send him that text message once the hoax call had been placed. In a further conversation they agreed that the offender would take a percentage of the proceeds of the robbery, which Steven Francis suggested would be 20%. 13. At 9.04am the offender sent a text message to his son Steven which read "Yes". Steven then indicated the content of that text message to the UCO. Shortly thereafter, when the UCO left the motel room in which the men were preparing, police entered and Steven Francis was arrested together with another co-offender Dean Schumertl. 14. The offender was arrested on the same day at his home in Nabiac. He participated in an electronically recorded interview and agreed that he met with his son and a man at Nabiac and that the man told him about plans to hold-up the RSL Club. He said he suspected the man was a police officer from the beginning and just strung him along. He said he probably did agree to make the hoax phone call, but that he had been drinking. Police read back contents of the conversation he had with his son earlier that morning and the offender claimed he didn't really know what the conversation was about. 15. Exhibit A contained the criminal antecedents of the offender, which confirmed that on 26 February 2015 he had been sentenced at the Forster Local Court in respect of an offence of larceny of property value greater than $5,000 and less than $15,000. On 11 September 2015, on appeal to the District Court, he was sentenced on that charge by way of an Intensive Correction Order for a period of 9 months, commencing on 11 September 2015 and concluding on 10 June 2016. 16. Exhibit B was a Sentencing Assessment Report dated 25 January 2019 under the hand of Ms K Lisciotto. The report noted the offender had a long history of stable employment but that he had been unemployed for approximately five years following the loss of his business, because of the larceny charge in 2015. 17. Under the heading "Attitudes", the author stated that the offender gained insight into his offending behaviour and took full responsibility for it. He expressed his willingness to co-operate with any order imposed by the court, and described being motivated to live a conventional and prosocial life upon his release. 18. The offender reported an increase in alcohol consumption in the preceding 12 months leading up to the offence. Although he had not been offered any financial reward for his part in the offending, he was under the impression that he may have benefited financially from the offence. 19. The offender also stated that he had been diagnosed with depression after the loss of his employment in 2013. He expressed genuine remorse, stating "I'm glad it didn't go ahead" and acknowledged the potential harm to the community had that occurred. 20. The author noted that his prior response to supervision had been described as "exceptional" and he was commended on his reliability in relation to his community service work. 21. The offender was assessed as a medium risk of re-offending. A supervision plan was outlined and he was assessed as being suitable to undertake community service work. The offender's evidence 1. The offender tendered a report from Ms N Godbee, Forensic Psychologist, dated 20 January 2019. That report set out the offender's background history. He left school after completing Year 10 and thereafter worked in a number of unskilled and skilled occupations until he obtained his security licence in his early forties. After working for a security company for six years, he started his own business which was successful for a period of nine years. After being convicted of larceny in 2015, the offender lost his security licence and that led to the period of financial hardship. He had been unable to obtain employment since that time because of his inability to pass criminal history checks. He told the author however, that upon his release from custody, he now has an offer of employment in a plumbing business and another offer to work on an oyster farm. The offender had suffered injuries in a serious motor vehicle accident in his late twenties to his neck and back and was therefore unable to do heavy physical work. 2. The offender reported that his drinking had increased after losing his job in 2013, and that continued up until his arrest when he was drinking up to 20 beers per day. He had been in a relationship with his current partner for 15 years. 3. The author stated that the offender's conviction for larceny in 2015 had had a significant impact on his life, including having to sell his home to meet the family's financial needs. 4. The offender had agreed with the Police Agreed Statement of Facts, however he stated that he had no intention of making the hoax phone call. He had agreed because he was intoxicated and was taken by surprise when his son's plan had been presented to him. In the week following that conversation, he became increasingly stressed about whether his son was going to actually rob the RSL Club. The offender stated that he felt guilty about his behaviour and that it was wrong of him to agree to make the phone call. 5. The author noted that the offender presented with good insight into the problematic nature of his alcohol consumption and his need to engage in treatment to address his mental health difficulties. Upon his release he planned to reside with his partner near Forster and was developing a plan to seek psychological treatment. It was recommended that he engage in drug and alcohol counselling and that he be given support in finding employment upon his release. 6. Exhibit 2 was a letter written by the offender's partner dated 2 February 2019. It expressed her disbelief that he had been involved in this offence and set out the history of their relationship and the offender's loss of employment following his conviction in 2015. She reported that the offender had been very well respected in the community and had built his security business from the ground up. He had provided assistance to others in the community and was a family man and caring person. The letter records that he has expressed remorse for his actions and requests that the offender be released to ensure that he gets professional help for his problems. 7. Exhibit 3 was a bundle of testimonials, written by friends of the offender which speak highly of his character and his caring nature. They also speak to his remorse for his criminal conduct. 8. The offender gave no evidence at the sentence hearing. The offender's submissions 1. Counsel for the offender submitted that the objective seriousness of the offending, for his part in the conspiracy, would be assessed at the lower end of the range. It was submitted that, in assessing the objective seriousness, it was important to look at the acts of each of the participants. The offender's role here was different from that of his son Steven. The offender had nothing to do with the planning for the armed robbery, having left that employment six years beforehand. He was now very very regretful that he had supported his son Steven once he had been told of the planned armed robbery. The only contact the offender had with the UCO was at the Nabiac Hotel. Thereafter he had no physical involvement in the operation, but undertook to make the hoax phone call. He had sent a text to his son to the effect that the phone call had been made, but clearly he had had second thoughts. 2. It was submitted that the planning involved for this armed robbery was not sophisticated at all. For example, the banks did not open until 10am and it was unlikely that the cash-in-transit vehicle would pick up the club's money at 9am. It was conceded that the offender was still involved in the conspiracy, but to a small degree. 3. Counsel referred to the following subjective matters on behalf of the offender. He was 56 years old and had one prior stealing offence. That had led to a downward spiral in his life. However the Sentencing Assessment Report made it clear that he had cooperated with Community Corrections and the letters, comprising Exhibit 3, showed that people close to him still considered him a person of reasonable character. Until 2013 he had been a respected member of the community and his partner had stuck by him. 4. It was submitted that there were no aggravating factors to the offending here. The offender had entered an early and remorseful plea of guilty and was entitled to a maximum discount of 25% on sentence. He was in fact deeply remorseful and regretful as to what had transpired and very relieved that the operation did not proceed further. 5. It is submitted that the offender had been diagnosed as suffering depression and anxiety. Although there was no diagnosis, he was also claustrophobic, which affected him in his custodial sentence and made it more difficult than the average prisoner. 6. Counsel submitted that a finding of special circumstances should be made to alter the ratio between head sentence and non-parole period, The offender had prospects of obtaining employment upon his release and wanted to establish his good-standing in the community and provide for his partner. The Sentencing Assessment Report was very positive as to his prospects for rehabilitation. Whilst it was acknowledged that the offending was very serious offending involving the proposed use of firearms, the offender had not made the phone call so as to divert police away from Forster. The offender would require treatment for his mental health and alcohol problems, of which he was willing to engage in the future. 7. Counsel submitted that the following were mitigating factors; namely, there was no injury or emotional harm, the offender had one prior offence some six years beforehand, the testimonials in Exhibit 3 spoke of his good character and it was submitted that he was unlikely to reoffend and had good prospects of rehabilitation. He had clearly expressed remorse by his early plea of guilty. 8. It was submitted that he was not a man of violent character and that he had been a reluctant participant in the conspiracy at the eleventh hour. Counsel agreed with submissions made by Counsel on behalf of Steven Francis that the Henry guideline applied in sentencing for this offence. The Crown submissions 1. The Crown submitted that, in assessing the objective seriousness of the offending, the following facts should be taken into account. The offender's involvement was first flagged by his son to the UCO on 18 March 2017. His involvement was confirmed at the meeting at Nabiac Hotel which took place on 28 March, in which he provided information that was important concerning the cash-in-transit run in Forster. He had agreed to participate in the operation and also to look at the site of the proposed robbery, although there was no evidence that he did. 2. On 2 April the offender had confirmed that he would make the hoax call and on 3 April he had spoken to his son Steven about the hoax phone call and agreed to meet him at Bulahdelah. There was no evidence as to why the offender had not made the phone call and it was submitted, on behalf of the Crown, that he may have got the date wrong. I know however that that is inconsistent with the message he sent to his son, namely "Yes", meaning that the call had been made. 3. The Crown submitted that the offender was to be sentenced on the basis that he made an agreement to participate in a serious criminal offence, although the court would have regard to the fact that what he did, in furtherance of the operation, was less than his son. 4. The Crown accepted that he was entitled to a 25% discount on sentence. He had limited criminal history, namely one prior offence and it was further submitted that no weight could be given to the remorse expressed by his partner in Exhibit 2. 5. In respect of the offender's subjective case, the Crown submitted that there was no evidence of any causal connection between the depression he suffered following his arrest in 2013, and the excessive drinking that escalated thereafter to the subject offence. In any event, self-induced intoxication could not be relied on in mitigation. It was further submitted that there was insufficient evidence of the offender's mental health to establish a causal connection between that condition and the offending behaviour. His explanation for saying he would make the hoax phone call, was that he was drunk. However, that occurred on at least two occasions. The court could however have regard to his stable relationship, his good work history and reasonable prospects of rehabilitation in arriving at a sentence. Determination 1. Section 3A of the CSPA sets out the purposes of sentencing as follows: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community". 1. As outlined in my Remarks on Sentence in respect of Steven Francis, the essential feature of the offence of conspiracy is the agreement to participate in an organised criminal activity. From the meeting held on 28 March 2017 at the Nabiac Hotel the offender became aware of Steven Francis' plan to commit an armed robbery at the RSL Club in Forster and the offender provided relevant information concerning the nature of the cash-in-transit operation. Further the offender undertook to facilitate the criminal conduct by placing a hoax call to police to divert their attention away from the area to allow the robbery to be carried out and the co-offenders to escape. 2. As set out in my Remarks on Sentence in Steven Francis, the fact that the conspiracy was never acted upon does not make it any less serious. 3. I note that the conspiracy offence is a common law offence and the maximum penalty is at large, and there is no standard non-parole period applicable. In assessing the objective seriousness of the offender's part in that offence, it clearly lies at the lower level of objective seriousness than that of his co-offender Steven Francis. I accept the submission that it is towards the lower end of objective seriousness for such an offence, although still constitutes serious offending. 4. It is an aggravating factor in the offending that the offender was "in company" at the time of the offence, although I do not double count that. I am further satisfied that the offender was motivated by financial gain, which is not an element of the offence of conspiracy. I further accept that it is a mitigating factor pursuant to s.21A(3)(a) there was no emotional harm or loss or damage caused by the offending. 5. As I have stated in the Remarks on Sentence of Steven Francis, general deterrence is important in the sentencing process here. Armed robbery is a very serious criminal offence and a clear message must be sent to like-minded members of the community that Parliament has proscribed severe maximum penalties for such an offence and the courts will impose lengthy custodial sentences in appropriate cases. Specific deterrence is also important here given that the offender was convicted of an offence of dishonesty involving the same type of business, namely larceny of proceeds from a club, that he must understand that by continuing to break the law, he has exposed himself to a lengthy custodial sentence. I find that there is no causal connection between his mental health diagnosis of depression and anxiety, nor his consumption alcohol, to the offending here. Rather, he was motivated by financial gain. 6. I accept that the offender is entitled to a 25% utilitarian discount on sentence by reason of his early plea of guilty, which also indicates some remorse for his offending. I place little weight on his expressions of remorse to Ms Godbee or to his partner, given that both were unsupported by sworn evidence. 7. There are significant distinctions from a typical case referred to in the guideline judgment of R v Henry which applies to offences pursuant to s.97(2) of the Crimes Act 1900. Here the offender was much older than the typical offender referred to in Henry and there was no actual violence involved, but there was a threat of such violence. Further the guideline judgment involved a 10% utilitarian discount on sentence in the face of a strong Crown case. Here the discount is 25%. 8. I am satisfied that the offender has good prospects of rehabilitation. I further find that special circumstances are established pursuant to s.44(2) of the CSPA and I therefore intend to vary the ratio between head sentence and non-parole period pursuant to that section. 9. I am satisfied that the s.5 threshold has been crossed and no other penalty other than a full time custodial sentence is warranted here. I intend to sentence the offender to a head sentence of 3 years imprisonment, with a non-parole period of 1 year and 9 months commencing on 4 April 2018. Orders 1. I therefore order as follows:- 1. You are convicted of the offence of conspiracy to commit a robbery while armed with a dangerous weapon pursuant to the common law and s.97(2) of the Crimes Act 1900. 2. I sentence you to a non-parole period of 1 year and 9 months to commence on 4 April 2018 and to terminate on 3 January 2020. 3. The balance of term of 1 year and 3 months will commence on 4 January 2020 and expire 3 April 2021. 4. Your parole eligibility date is 3 January 2020. ********** 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: 20 February 2019