Citation: Regina v Glen Gordon Knowles [1999] NSWCCA 235
Court: Court of Criminal Appeal, New South Wales
Date: 6 August 1999
Judges: Levine J; Carruthers AJ
Background
The applicant pleaded guilty in the District Court in December 1997 to robbery in company, contrary to s 97 of the Crimes Act 1900, which carries a maximum penalty of twenty years penal servitude. The offence arose from a 1991 incident in which the victim, a carpenter carrying $3,500 in cash, was forced to the ground by accomplices while the applicant went through his pockets and took the money. A number of additional offences, including assault, malicious wounding, goods in custody, and bail-related matters, were taken into account on a Form 1.
District Court Judge Shillington imposed a minimum term of six years commencing 10 November 1997, with an additional term of two years commencing 10 November 2003. The applicant sought leave to appeal, appearing in person, on the ground that the sentence was excessive.
A central factual issue complicated the appeal: the applicant asserted he had been in custody in Queensland for periods from 1992 onwards, and that this history should have affected the sentence. The Court of Criminal Appeal adjourned the matter on a prior occasion to allow Queensland correctional authorities to be contacted and affidavits obtained.
Legal Issues
- Whether the sentence imposed by Judge Shillington was manifestly excessive in all the circumstances.
- Whether the applicant's asserted Queensland custodial history from 1992, if established, would have affected the sentencing outcome, including through the principles in Mill v Regina, Regina v Todd, and Regina v Larson concerning accumulation or concurrency of sentences across jurisdictions.
- Whether the delay between the 1991 offending and the 1997 sentencing should operate in the applicant's favour.
Decision
The Court found that the applicant's claim of extended Queensland custody from 1992 was not supported by evidence. Inquiries directed to Queensland authorities produced records showing the earliest documented imprisonment was an admission to Arthur Gorrie Correctional Centre on 27 November 1996. The New South Wales corrective services records showed a gap of roughly five years between a 1992 bail remand and the November 1997 extradition. No evidence filled that gap in the way the applicant contended.
On the substance of the sentence, the Court accepted that Judge Shillington had correctly assessed the objective gravity of the offence. The robbery involved a degree of planning and premeditation, amounting to an ambush of the victim. The applicant had an extensive and serious criminal record in both New South Wales and Queensland, and his criminal history was predominantly concerned with dishonesty.
The Court also rejected arguments based on delay. Because the applicant had failed to appear for trial and had been in Queensland on other matters, the passage of time between offending and sentence did not operate in his favour. Drug dependence at the time of the offence was not treated as a mitigating factor in the context of robbery. The effect of imprisonment on family members was noted but did not meet the threshold of extraordinary or exceptional circumstances required for that consideration to carry weight.
The Court concluded that although the sentence was one of some severity, it was proportionate to the seriousness of the offence and reflected appropriate consideration of relevant subjective matters.
Orders Made
- Leave to appeal granted.
- Appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that delay between offending and sentencing does not automatically benefit an offender where the delay is substantially attributable to the offender's own conduct, such as failing to appear and absconding interstate.
- Under the sentencing principles engaged by Mill v Regina and related authorities, an assertion that prior interstate custody should affect a sentence must be supported by evidence; bare assertions are insufficient.
- Drug dependence at the time of a robbery offence does not constitute a mitigating factor in the assessment of that offence.
- The effect of a custodial sentence on family members is not ordinarily taken into account in sentencing unless extraordinary or exceptional circumstances are demonstrated.
- In dismissing the appeal, the Court found no error in the sentencing judge's emphasis on the objective gravity of a planned, ambush-style robbery committed by an offender with an extensive and serious record.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 97 (robbery in company; maximum twenty years penal servitude)
Cases
- Mill v Regina (1988) 166 CLR 59
- Regina v Todd (1982) 2 NSWLR 517
- Regina v Larson (1989) 44 A Crim R 121