R v Benjamin Paul Day [2009] ACTSC 151 (14 October 2009)

Last Updated: 13 November 2009

R v BENJAMIN PAUL DAY

[2009] ACTSC 151 (14 October 2009)

REASONS FOR JUDGMENT AS TO THE

CONTESTED FACTUAL BASIS FOR SENTENCE ON

AGGRAVATED ROBBERY

No SCC 8 of 2009

Judge: Spender J

Supreme Court of the ACT

Date: 14 October 2009

IN THE SUPREME COURT OF THE )

) No SCC 8 of 2009

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

against

BENJAMIN PAUL DAY

ORDER

Judge: Spender J

Date: 14 October 2009

Place: Canberra

THE COURT ORDERS THAT:

1. A pre-sentencing report be prepared.

2. The matter be adjourned until Monday, 30 November 2009, for sentencing.

1. On 12 October 2009, Benjamin Paul Day pleaded guilty to a charge that on the 19th day of July 2008, at Canberra in the Australian Capital Territory, he robbed a Campbells Cash and Carry Pty Ltd (Campbells), and at the time of doing so, was in the company of Prasatphone Phimphisane and Dusan Pavicevic, who, at that time, had with them offensive weapons, namely knives.
2. The Crown case, according to counsel for the Crown, Mr Todd, was that the accused was a principal in the first degree to that robbery. The Crown’s case essentially is that, “he was involved in planning the particular aggravated robbery and was present when it occurred on 19 July 2008”.
3. The submission by Mr Archer of counsel, who appeared for Mr Day, was that having regard to s 45 of the Criminal Code 2002 (ACT), and in particular s 45(2)(b)(i) and (ii), Mr Day was aware that Mr Phimphisane and Mr Pavicevic were going to commit a burglary at Campbells, and he was reckless as to the possibility of them committing a further offence which is the offence (of aggravated robbery) set out on the indictment.
4. Mr Archer explained the effect of s 45: where two or more people join in a common purpose to commit an offence, and if the “chief participants” in committing the offence commit another offence, “the person who was party to the common purpose will otherwise be held responsible for that if he is reckless in relation to the commission of that further offence”.
5. My view of the evidence in relation to the involvement of Mr Day is clear. The crucial issue is whether the drawing of the map and the discussions that occurred on the evening of 18 July 2008 were for the purpose of enabling Mr Pavicevic and Mr Phimphisane to commit a breaking and entering of Campbells and nothing more, or whether in fact the plan contemplated the real possibility of a robbery being effected.
6. In my judgment, I reject the claim that the map was drawn for the purpose of, and went no further than to facilitate, a breaking and entering. I am unsure whether Mr Day was aware of when a robbery would occur, but I think it likely that it was in his contemplation that it would occur at the close of business on Saturday, 19 July 2008. The fact that he was waiting around at Campbells to be picked up by Mr Pavicevic, having arranged by telephone during the morning that he would be picked up, leads me to conclude that his whole story of being surprised by the robbery that occurred that day is not believable.
7. A great deal of stupidity on the part of Mr Phimphisane, Mr Pavicevic and Mr Day, of course, attends these events, but it is only if somehow room 11 of the Kingston Hotel (Mr Day’s room) and its contents could be connected with the two actual robbers that the involvement of Mr Day in the robbery would be discovered. Nothing in the circumstances of the robbery itself would lead the police to Mr Day’s room, and the identity of the two persons who stayed there the previous night. The state of the room clearly provided a great deal of information and evidence as to the identity of the two actual robbers, but the connection between Mr Day and those persons, through room 11, would not have been in the contemplation of the police, but for the behaviour of Mr Pavicevic and Mr Phimphisane on the morning of 19 July 2008.
8. I am satisfied beyond reasonable doubt that it is appropriate to deal with Mr Day on the basis that he was a principle offender in the aggravated robbery, and not on the basis that he was merely reckless as to the offence of aggravated robbery that was committed by Mr Pavicevic and Mr Phimphisane.
9. It is quite unrealistic to believe that the map was drawn solely for the purpose of facilitating a break and enter. It seems to me that that conduct is explicable only on the basis that it would facilitate a robbery at a time when the premises were occupied by some staff members and the alarm would not be activated.
10. Mr Phimphisane said in his oral evidence that there had been no discussion about the time of day in which a break and enter was going to happen.
11. The explanation for wearing dark coloured clothing and bandanas over their faces, both by himself and Mr Pavicevic, if they were concerned only to commit a burglary, is quite unconvincing. He was asked, “Why’d you need the [dark] clothing for if you were going to do a break and enter at night time?” And he answered, “It was dark-coloured clothes, so won’t be able to see in the night”.
12. Mr Phimphisane said that he wore the dark hooded jacket, dark pants, and black shoes from the Kingston Hotel. He had a bandana over his face. He said he “walked straight from ... the car ... to inside the place” carrying a knife, and with a beanie and gloves and a bandana, all of which he had put on just before he went inside.
13. I am not prepared to accept that Mr Day knew that the robbers would be armed with knives. But, it was certainly in his contemplation that Mr Phimphisane and Mr Pavicevic would effect a robbery in company, aided by his map at a time when the premises were open and staff members were there.
14. The telephone calls between Mr Day and Mr Pavicevic and the arrangement that he would be collected by Mr Pavicevic at the end of the day is consistent, in my view, only with the notion and the knowledge that Campbells would be robbed at a time when there were staff members, including him, inside and the building was open.
15. I accept that his involvement is quite a different order from, particularly, Mr Pavicevic, but it is not, in my view, to be viewed simply on the basis that he drew a map to facilitate a break and enter and that the robbery occurred against his will, without his knowledge and was not in contemplation by him as an event that the map would facilitate.
16. I have to say that, notwithstanding that primary factual conclusion, Mr Day impressed me in giving his evidence as to the possibility of reformation and rehabilitation, in particular his conduct and activities during the period he has been on remand. However, I am satisfied beyond reasonable doubt that his participation in the robbery in company was contemplated by him prior to its occurring, and his involvement is not to be confined simply to the preparation of a plan so as to enable Mr Phimphisane and Mr Pavicevic to commit a burglary on the premises at a time when the premises were locked, alarmed and un-staffed.
17. As I have said, my assessment of the involvement of the other principal offenders to this aggravated robbery is of quite a different order to that of Mr Day.
18. Mr Pavicevic, in his oral evidence on this sentence, has demonstrated not the slightest skerrick of remorse; his criminality was selfish and gross and devoid of any moral insight whatsoever; any prospect of rehabilitation is slight, and his continuing contempt of the criminal law was confirmed.
19. However, Mr Day was not pressured to supply information to assist in the contemplated criminal conduct. He volunteered his assistance. He contemplated that Campbells, his employer, would be “cleaned out”. He was quite an actor in the events that occurred, as his conduct and protestations to the police as a “victim” subsequent to the event demonstrates.
20. I will ask for a pre-sentence report and I will adjourn the sentence until 10 am on 30 November 2009.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Spender.

Associate:

Date: 11 November 2009

Counsel for the prosecution: Mr C Todd

Solicitor for the prosecution: ACT Director of Public Prosecutions

Counsel for the offender: Mr K Archer

Solicitor for the offender: Legal Aid Office (ACT)

Date of hearing: 12,13,14 October 2009

Date of judgment: 14 October 2009