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Court of Criminal Appeal 14 February 2001

Regina v Lestrange

[2001] NSWCCA 25

Theft & property

Citation: Regina v Lestrange [2001] NSWCCA 25
Court: NSW Court of Criminal Appeal
Date: 14 February 2001
Judge(s): James J, Whealy J

Background

The applicant was convicted by jury of robbery while in company at a Wareemba liquor store in December 1996, during which victims were threatened with a tyre lever and the premises were ransacked for cash and cigarettes. He subsequently pleaded guilty to three further matters: an aggravated robbery at a post office days later, a robbery of an individual in May 1998, and a bank robbery in May 1998 involving approximately $23,350. Several related offences were also taken into account on a Form 1.

The sentencing judge in the District Court, Christie DCJ, dealt with all matters together in December 1999. The applicant appeared for himself at sentence. Relevant subjective matters included a serious stroke (apparently caused by a drug overdose) suffered while on bail, significant physical disability, a deeply troubled upbringing, and a lengthy and serious prior criminal record. One of the offences was committed days after release from an earlier term, and another while the applicant was on bail.

The applicant sought leave to appeal against the sentences imposed, contending they were manifestly excessive and that special circumstances warranting a longer additional term had been wrongly overlooked.

  • Whether the aggregate sentences imposed were manifestly excessive having regard to the applicant's subjective circumstances, including his serious physical disability
  • Whether the sentencing judge erred in failing to find special circumstances that would justify a departure from the statutory ratio between minimum and additional terms
  • Whether the sentencing judge adequately took into account all relevant subjective factors, including the applicant's health and personal history

Decision

Whealy J (with whom James J agreed) found no error in the sentences imposed. His Honour noted that Christie DCJ had expressly reduced the sentence for the Wareemba offence from what would otherwise have been nine years to six years penal servitude, specifically because of the applicant's serious health condition. The sentencing judge had also made a formal recommendation regarding access to physiotherapy and treatment within the custodial system.

On the question of manifest excess, the Court observed that the offences were more serious than the model robbery scenario described in the guideline judgment of R v Henry (1999) 46 NSWLR 346. The applicant's record was described by the sentencing judge as "atrocious," several offences were committed while on bail or shortly after release from custody, and aggravating circumstances were present throughout. Against that background, the Court concluded the sentences could not be characterised as manifestly excessive.

Regarding special circumstances, Whealy J acknowledged that illness or disability can, in appropriate cases, constitute special circumstances, citing Sellen v R (1991) 57 A Crim R 313. However, the relevant question is whether there is a need or desirability for an extended period of conditional release and supervision on parole, not simply whether subjective features are present. The Court found that Christie DCJ had applied the correct principles and no error was established in his refusal to find special circumstances.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a substantial reduction in sentence to reflect serious physical disability does not, of itself, require a further adjustment to the minimum/additional term ratio through a finding of special circumstances.
  • A conviction for robbery offences committed while on bail, combined with an extensive prior record and aggravating circumstances, can justify sentences that significantly exceed the model case in the guideline judgment of R v Henry.
  • Under the relevant sentencing principles, "special circumstances" requires more than the mere presence of subjective features: the test focuses on the need or desirability for an extended period of supervised conditional release after custody.
  • Illness or disability may constitute special circumstances in appropriate cases, but the sentencing court retains a discretion and no error arises simply because such factors exist, provided the judge has applied the correct framework.
  • No error was established in Christie DCJ's sentencing approach, including his express acknowledgment of the applicant's disability and his formal recommendation for treatment within the custodial system.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery while in company)

Cases:
- R v Henry (1999) 46 NSWLR 346 (guideline judgment for robbery offences)
- Phelan v The Queen (1993) 66 A Crim R 446 (special circumstances)
- Sellen v R (1991) 57 A Crim R 313 (disability as special circumstances)
- Lowe v The Queen (1984) 154 CLR 606
- R v Bailey (1988) 35 A Crim R 459
- R v Smith (1987) 44 SASR 587
- R v Vachalec (1981) 1 NSWLR 351
- R v Martin (1990) 47 A Crim R 168
- R v Peuna (NSWCCA, 23 July 1992, unreported)
- R v L (NSWCCA, 17 July 1996, unreported)
- R v Yousseff (CCA, 4 September 1991, unreported)