Citation: R v Weyermann, Chade and Powell, Jonathan [2010] NSWDC 92
Court: District Court of New South Wales
Date: 1 April 2010
Judge: Nicholson SC DCJ
Background
Three days before Christmas 2008, the Dubbo Railway Bowling Club was robbed of approximately $41,000 by three men. The robbery involved a sawn-off .22 calibre pump-action rifle and a balaclava. The alleged mastermind, Grant Bartley, had a contested hearing listed separately. The two offenders before the court, Chade Samuel Weyermann and Jonathan Alan Powell, had each pleaded guilty to robbery while armed with a dangerous weapon.
The planning for the robbery was substantial. Bartley conceived the scheme the day before, proposing it to Powell during a car trip from Lithgow to Dubbo. Powell then recruited Weyermann, drove to Mudgee to collect him, and informed him of the plan on the return journey. Weyermann had been released on parole only 18 days earlier. Powell acted as the getaway driver and also entered the club to signal the "all clear," while Weyermann carried out the armed robbery. Bartley, described as the director and major planner, entered the club ahead of the robbery and blended in as a spectator among patrons.
Weyermann was 22 at the time of the offence. Powell was 20. Each had a different prior relationship with Bartley, and the court considered the differences in their roles, culpability, and personal circumstances separately when determining appropriate sentences.
Legal Issues
- What findings of fact could properly be drawn from the agreed facts tendered by the parties?
- What was the objective seriousness of the offence, including the level of planning, the use of a dangerous weapon, and the danger posed to the public?
- What discount was warranted for each offender's plea of guilty and, in Powell's case, assistance to police?
- Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and balance of term?
- What weight should be given to rehabilitation prospects, particularly given Powell's youth?
- Whether the sentencing discretion permitted suspension of Powell's sentence under section 12 of the Crimes (Sentencing Procedure) Act?
- How did Weyermann's breach of an existing good behaviour bond affect the final sentencing outcome?
Decision
The court treated the objective criminality of the robbery as serious. The offence involved significant planning, the use of a shortened firearm and disguise, three victims, and a real danger to members of the public at the club. The court noted that while the stolen money was recovered, this did not substantially reduce the gravity of the offending.
The court differentiated carefully between the two offenders' roles. Weyermann was recruited late to the enterprise, but nonetheless carried the firearm inside the club and committed the robbery. His recent release on parole at the time of the offence weighed against him. The court sentenced him to a non-parole period of two years with a balance of term of two and a half years, resulting in a total term of four and a half years. The sentence was also found to constitute a breach of an existing good behaviour bond, with the original sentence under that bond restored to run concurrently.
Powell's position was treated differently, primarily because of his youth, his guilty plea, and his assistance to police. The court assessed that but for those factors, a four-year sentence would have been appropriate. Applying a 45 per cent reduction for the plea and assistance, the court arrived at a sentence of approximately 26 months. It then rounded that down to two years to allow the sentence to be suspended under section 12 of the Crimes (Sentencing Procedure) Act, finding that rehabilitation warranted additional weight given Powell's age. The suspended sentence was made conditional on Powell entering a good behaviour bond, to be supervised by Probation and Parole.
The court noted its independent fact-finding role even where agreed facts were tendered by the parties, emphasising that tendered agreed facts limit the material available to a judge but do not discharge the judicial obligation to find facts from evidence.
Orders Made
Chade Samuel Weyermann:
- Convicted of robbery while armed with a dangerous weapon on 22 December 2008 at Dubbo
- Non-parole period of two years, dating from 13 April 2009, expiring 12 April 2011
- Balance of term of two and a half years, expiring 12 October 2013
- Breach of existing good behaviour bond established; term of 12 months imprisonment with nine months non-parole (originally imposed by the Magistrate) restored, running entirely concurrently with the above sentence
- Firearm offence (s 166) dismissed on application of the Crown
Jonathan Alan Powell:
- Convicted of robbery while armed with a dangerous weapon on 22 December 2008 at Dubbo
- Term of imprisonment of two years imposed
- Sentence suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act, conditional on entering a good behaviour bond
- Bond conditions: supervision by Probation and Parole; attendance at counselling, treatment, and programs as directed, including employment support programs if not in employment
- No non-parole period set
Key Takeaways
- A sentencing court retains an independent fact-finding responsibility even when parties tender an agreed statement of facts; the agreed facts define the boundaries of available material but do not substitute for judicial fact-finding.
- Significantly different roles within a joint criminal enterprise can produce markedly different sentencing outcomes, even where offenders are convicted of the same offence.
- Under section 12 of the Crimes (Sentencing Procedure) Act, a court may suspend a custodial sentence where rehabilitation is assessed as a particularly weighty consideration, as the District Court found it to be for a young, first-time serious offender who pleaded guilty and assisted police.
- A guilty plea and cooperation with police together attracted a 45 per cent sentence reduction in this case, demonstrating the substantial combined weight those factors can carry in the sentencing calculus.
- Committing a serious offence while on parole is a significant aggravating factor, and a subsequent conviction will ordinarily constitute a breach of any existing good behaviour bond, potentially re-enlivening earlier sentences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12
- Firearms Act 1996 (NSW)
Cases:
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby [1977] 1 NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- R v Gladue [1999] 1 SCR 688 (Supreme Court of Canada, cited on the sentencing task)