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Court of Criminal Appeal 19 June 2000

Regina v Steer

[2000] NSWCCA 233

Theft & propertyFirearms & weapons
CRIMINAL LAW AND PROCEDURE SENTENCE NO SPECIAL MATTER OF PRINCIPLE

Citation: Regina v Steer [2000] NSWCCA 233
Court: NSW Court of Criminal Appeal
Date: 19 June 2000
Judge(s): Grove J, Newman J

Background

The applicant, Brian James Steer, applied for leave to appeal against the severity of sentences imposed by Howie DCJ in the Sydney District Court. The sentences arose from two indictments covering three armed robbery offences committed between February 1996 and April 1998.

On the first indictment, the applicant had pleaded guilty to aggravated armed robbery under s 97(2) of the Crimes Act, committed while he was subject to a recognisance requiring good behaviour. On the second indictment, he pleaded guilty to two counts of unaggravated armed robbery under s 97(1), both committed while he was on bail in respect of the first matter.

Howie DCJ sentenced the applicant to a fixed term of two years and three months penal servitude on the first indictment, followed by concurrent minimum terms of two years and six months on the second indictment, with an additional term during which the applicant would be eligible for parole. A prior period of nine months' custody was taken into account.

  • Whether the sentencing judge erred by treating the first offence as aggravated armed robbery under s 97(2), rather than the unaggravated form under s 97(1)
  • Whether the guideline judgment in R v Henry, handed down after sentencing, affected the validity of the sentence
  • Whether the sentencing judge gave insufficient weight to the applicant's psychiatric material and personal circumstances
  • Whether appropriate consideration was given to the applicant's cooperation with authorities and his guilty pleas
  • Whether the sentences imposed fell outside the proper range of sentencing discretion

Decision

The Court resolved the documentary confusion about the indictments at the outset. An amended, unpresented indictment from 1996 had mistakenly been sent to the applicant, leading him to believe he had not pleaded guilty to the aggravated form. The Court of Criminal Appeal clarified that the applicant had in fact pleaded guilty to s 97(2) on 1 June 1998 and that Howie DCJ had dealt with him on that correct basis. No fault was attributed to the applicant for raising this issue given the administrative error.

On the R v Henry guideline judgment, the Court noted it was handed down after sentencing and that the applicant contested the finding of systematic leniency in prior sentencing practice. The Court took the view that the real question was whether error existed in the actual sentence imposed, and was not persuaded that any error had occurred.

The Court found no error in Howie DCJ's conclusion that the offences were motivated by greed, despite the applicant's submissions that his mental distress and desire to assist his then wife explained his conduct. The nexus between that distress and the commission of armed robbery was described as remote in the extreme. The Court was satisfied that the psychiatric material, the applicant's cooperation with authorities regarding his former wife, and his guilty pleas had all been properly considered and weighed.

The Court concluded that the sentences were well within the proper range of sentencing discretion. The applicant's record, while not described as particularly bad, was sufficient to preclude any special leniency. The three separate offences, the commission of the first while on a recognisance and the latter two while on bail, and the objective criminality involved all supported the outcome below.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence properly within the range of sentencing discretion will not be disturbed on appeal, even where a guideline judgment issued after sentencing might have provided additional reference points.
  • A documentary error that causes a self-represented applicant to misunderstand the charge to which they pleaded guilty will not, of itself, establish error in the sentence where the court record confirms the true position.
  • Committing offences while subject to a recognisance or on bail constitutes an aggravating circumstance relevant to sentence.
  • Where a sentencing judge explicitly finds that offences were motivated by greed, that finding will not be displaced on appeal merely because the offender points to personal distress as a contributing factor, particularly where the causal connection between that distress and the offending is tenuous.
  • Appropriate discounts for guilty pleas and cooperation with authorities do not preclude a substantial sentence where the objective seriousness of the offending, the number of offences, and the circumstances of their commission warrant one.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 97(1) (armed robbery)
- Crimes Act (NSW), s 97(2) (aggravated armed robbery)

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment on armed robbery sentencing)
- R v Cartwright (referenced in the judgment without full citation)
- R v Gallagher (referenced in the judgment without full citation)