Citation: Regina v Gee [2000] NSWCCA 457
Court: NSW Court of Criminal Appeal
Date: 1 November 2000
Judge(s): Giles JA, James J, Whealy J
Background
The appellant was convicted by a jury of four counts of robbery whilst armed with an offensive weapon, committed across a two-month period in 1997. In each offence, he approached a female bank or building society teller and displayed what appeared to be a firearm (in fact an object resembling one) while quietly demanding cash. Each offence followed the same pattern, with the appellant wearing a consistent disguise.
The sentencing judge in the District Court imposed concurrent minimum terms of five years imprisonment with an additional term of one year and eight months for each offence, with no finding of special circumstances. The appellant had previously appealed against his conviction, and that appeal was dismissed in May 2000 by a differently constituted Court of Criminal Appeal.
The appellant then pursued a separate severity appeal, appearing without legal representation. He raised four grounds, arguing broadly that the sentencing judge had failed to properly consider subjective material, medical evidence, the community interest in rehabilitation, and consistency with comparable sentences.
Legal Issues
- Whether the sentencing judge erred by proceeding without a pre-sentence report
- Whether the sentencing judge properly weighed the appellant's subjective circumstances, including his serious physical injuries from a 1980 motorcycle accident
- Whether the sentencing judge adequately balanced community interests in punishment and rehabilitation
- Whether the sentences were manifestly excessive or inconsistent with sentences imposed for comparable offences
Decision
On the pre-sentence report, the Court found no error. The report had in fact been available at the sentencing hearing, and it was the appellant's own legal representative who objected to its tender. In those circumstances, the sentencing judge was not at fault for proceeding without it.
The Court found that the sentencing judge had, in fact, engaged carefully with the appellant's subjective circumstances. Detailed psychological evidence from a psychologist, a letter from a treating doctor regarding spinal injuries, and a character reference from the chaplain at Silverwater were all before the judge. The psychologist's own report noted that the appellant possessed a resilient personality and was well-equipped to manage the stresses of imprisonment, and the medical evidence confirmed only that exercise facilities and appropriate furniture were recommended. The judge made allowance for the fact that the offences were committed alone, that no weapon was actually discharged, and that only the tellers were placed in fear.
The Court identified several aggravating features that legitimately placed these offences in the more serious category: the appellant was a mature 38-year-old with a poor criminal record including dishonesty and violence; the offences were plainly planned and targeted; there were no guilty pleas and no remorse; and there were four separate offences over two months. The judge had also taken into account that the appellant re-offended after the robberies, which bore adversely on rehabilitation prospects. Against a maximum penalty of 20 years imprisonment, the sentences, though high, were found to be well within range and not excessive.
Orders Made
- Extension of time to apply for leave to appeal granted
- Leave to appeal against sentences granted
- Appeal dismissed
Key Takeaways
- Where a defendant's own legal representative objects to the tender of a pre-sentence report, the sentencing judge does not err in proceeding to sentence without reliance on that report.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that concurrent sentences for multiple armed robbery counts, though substantial, may properly sit within range where multiple aggravating features are present.
- No error was established in the sentencing judge's weighing of medical and psychological evidence where that evidence itself indicated the offender had the resilience to manage imprisonment.
- A finding of no special circumstances was upheld in circumstances where the offender had re-offended after the index offences, undermining the rehabilitation rationale that would otherwise support an extended additional term.
- Consistency in sentencing is assessed against the full range of comparable cases, and sentences near the higher end of that range are not excessive merely because they are severe.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW)
Cases:
- R v Maddox, Court of Criminal Appeal, 25 July 1993
- R v Henry (1998-99) 46 NSWLR 346