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District Court 23 July 2010

R v Bartley, Grant

[2010] NSWDC 269

Theft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE OFFENDERS LATE GUILTY PLEA CONTESTED HEARING $41,000 TAKEN

Citation: R v Bartley, Grant [2010] NSWDC 269
Court: District Court of New South Wales
Date: 23 July 2010
Judge(s): Nicholson SC DCJ

Background

Just days before Christmas 2008, three men carried out an armed robbery of the Dubbo Railway Bowling Club, netting approximately $41,000 in cash. The offender, Grant Bartley, was the oldest of the three at 42 years of age. His co-offenders, Samuel Weyermann and a young man referred to as J.P., had already been sentenced before Bartley appeared for sentence.

Bartley pleaded guilty to robbery whilst armed with an offensive weapon. The weapon was a shortened, loaded pump-action .22 calibre rifle, which is a prohibited firearm under the Firearms Act 1996. Bartley supplied the firearm, provided overalls for the robber to wear, entered the club to conduct reconnaissance, and gave the signal for the robbery to proceed.

The central dispute at the sentencing hearing concerned the precise extent of Bartley's role. The Crown, supported by J.P.'s evidence, contended that Bartley was the planner and architect of the robbery. Bartley contested certain aspects of that characterisation, and the court was required to resolve those factual disputes before determining the appropriate sentence.

  • What was the precise nature and extent of Bartley's role in the robbery, given disputed factual assertions by his co-offender and the Crown?
  • How should the objective seriousness of the offence be assessed, including the degree of planning and Bartley's specific contribution?
  • What weight should be given to subjective matters personal to Bartley, including his personal circumstances and prospects for rehabilitation?
  • How should the guilty plea discount be calculated, given that the plea was entered late?
  • What were the appropriate non-parole period and balance of term, and how should Bartley's sentence relate to those of his co-offenders?

Decision

The court found that the robbery involved substantial planning and clearly allocated roles. Bartley was the organiser: he supplied the prohibited firearm and ammunition, provided clothing to disguise Weyermann, travelled from Lithgow to Dubbo the day before the robbery, personally conducted reconnaissance inside the club, and gave the green light for the robbery to proceed. Weyermann carried out the physical robbery, and J.P. drove the getaway vehicle. All of the stolen money was ultimately recovered.

On the disputed facts, the court was required to apply the criminal standard and be satisfied beyond reasonable doubt before finding any matter adverse to Bartley. The court assessed Bartley's role as that of planner and architect, a finding supported by the CCTV evidence showing his extended presence in the club before the robbery and the evidence of J.P.

The court acknowledged Bartley's guilty plea but treated it as a late plea, attracting a more limited discount than would be available for an early plea. Subjective matters, including Bartley's personal circumstances and rehabilitation prospects, were also weighed in the overall sentencing exercise. The court noted the imperative that sentencing have as its primary focus the protection of the community.

In comparing the sentences imposed on the three co-offenders, the court structured Bartley's sentence so that his non-parole period exceeded Weyermann's by one month, but his overall head sentence was five months less than Weyermann's. Because the total sentence exceeded three years, Bartley's release on parole fell to the Parole Board rather than being within the court's power to grant directly.

Orders Made

  • Bartley convicted of robbery whilst armed with an offensive weapon.
  • Non-parole period of 2 years and 1 month, commencing 22 December 2008 and expiring 21 January 2011.
  • Balance of term of 2 years, expiring 21 January 2013.
  • Total sentence: 4 years and 1 month.

Key Takeaways

  • The District Court confirmed that where facts adverse to an offender are in dispute at a sentencing hearing, those facts must be proved by the Crown beyond reasonable doubt before the court can act on them.
  • Substantial pre-offence planning, including reconnaissance, procurement of a prohibited firearm, and allocation of specific roles among co-offenders, were treated as significant factors aggravating the objective seriousness of the robbery.
  • A late guilty plea attracts a reduced discount compared with an early plea, reflecting the more limited utilitarian value of the late plea to the administration of justice.
  • Where co-offenders are sentenced separately, the court calibrated the sentences against one another to reflect each person's role: the planner and supplier of the weapon received a longer non-parole period than the person who physically carried out the robbery, though the overall head sentence differed for separate reasons.
  • Sentences exceeding three years place the question of parole release entirely in the hands of the Parole Board, removing it from the sentencing court's direct control.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW)

Cases:
- The Queen v Gladue [1999] 1 SCR 688 (Canadian Supreme Court decision cited in the context of the sentencing task and the competing considerations a sentencing judge must balance)