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Court of Criminal Appeal 28 May 1999

R-v-Christie

[1999] NSWCCA 159

Assault & violenceFraud & dishonesty
DECISION : LEAVE TO APPEAL GRANTED.

Citation: R v Christie [1999] NSWCCA 159
Court: NSW Court of Criminal Appeal
Date: 28 May 1999
Judge(s): Barr J; McInerney AJ

Background

The applicant was sentenced in the District Court by Job DCJ on 16 April 1998 for two offences of demanding money with menaces, both committed at the same Newcastle building society branch. In the first offence, committed in February 1997, the applicant entered the branch with a pre-written note, claimed to have a gun, and obtained approximately $1,500. In the second offence, committed in November 1997, he returned to the same branch, waited outside until no customers were present, and obtained more than $1,000 by implying he had a concealed weapon inside a rolled-up newspaper.

At sentencing, the applicant was 38 years old and had prior convictions including sexual offences involving a child and an assault with intent to rob whilst armed. He raised a history of chronic alcoholism as a mitigating factor, and expressed genuine contrition by writing to the building society manager to apologise for the trauma caused to staff.

The applicant sought leave to appeal his sentences, arguing the sentencing judge should have found special circumstances arising from his alcoholism in order to restructure the sentences, reducing the minimum term and extending the additional term to allow for alcohol rehabilitation.

  • Whether the sentencing judge erred in failing to find special circumstances based on the applicant's alcoholism, which would have justified reducing the minimum term and lengthening the additional term to facilitate rehabilitation.
  • Whether the overall sentences adequately reflected both the objective seriousness of the offences and the applicant's subjective circumstances.

Decision

McInerney AJ, with Barr J agreeing, accepted that alcoholism may be relevant to sentencing in two ways: as a factor going to objective criminality (for example, where it bears on the impulsivity or planning of an offence), and as a subjective consideration where the nature or extent of the addiction, and any genuine attempts to overcome it, affect prospects of rehabilitation or recidivism. A finding of special circumstances may be warranted where an offender is genuinely at a crossroads in their battle with addiction.

However, the Court found that the applicant's prior attempts to address his alcohol problem had been, in the Court's words, "desultory in the extreme" and were not persisted with. He had left a detoxification program early, declined further treatment on a prior occasion, and the evidence provided no basis for concluding he was genuinely at such a crossroads. There was also no evidence before the sentencing judge as to how long any supervised rehabilitation program would take.

The question of special circumstances is a discretionary one for the sentencing judge. The Court found no basis to conclude that the experienced District Court judge's discretion had miscarried. Reducing the minimum term below that already imposed would not, in the Court's view, have reflected the objective gravity of these offences, which Job DCJ had described as very serious, easy to commit, and difficult to guard against.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Alcoholism may be a relevant sentencing consideration, both as a factor going to the objective nature of an offence (such as its degree of planning or impulsivity) and as a subjective factor where addiction history and rehabilitation prospects are genuinely engaged.
  • A finding of special circumstances to facilitate alcohol rehabilitation is not automatic where an offender has a history of addiction. The Court of Criminal Appeal confirmed it requires evidence that the offender is genuinely at a crossroads in their rehabilitation.
  • No error was established in the sentencing judge's exercise of discretion where the applicant's prior attempts at rehabilitation were half-hearted and no evidence was led as to the duration of any proposed treatment program.
  • In dismissing the appeal, the Court noted that reducing the minimum term would have failed to reflect the objective seriousness of two planned, deliberate robberies involving implied threats of armed violence.
  • The special circumstances question is a matter of discretion for the trial judge. An appellate court will not interfere unless that discretion has demonstrably miscarried.

Legislation and Cases Referenced

Legislation:
- The maximum penalty provision for demanding money with menaces (10 years penal servitude) was referenced, though the specific Act was not identified in the text.

Cases:
- No cases were cited by name in the provided judgment text.