Citation: REGINA v Stephen Andrew GORDON [2004] NSWCCA 45
Court: Court of Criminal Appeal, New South Wales
Date: 11 May 2004
Judge(s): Simpson J, Kirby J, Bell J (Bell J delivering the principal judgment)
Background
The appellant was convicted in the District Court following a jury trial on two counts of robbery while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 (NSW). Both counts arose from the same incident: an armed robbery of two tellers at a Windsor branch of Westpac Bank on 20 September 2001, during which approximately $12,000 was taken at gunpoint.
The appellant was sentenced by Gibson DCJ to eight years' imprisonment on each count, with the sentences accumulated on existing sentences for other offences. A non-parole period of three years was specified, and the sentences were directed to commence in November 2004.
On appeal, the appellant challenged both his conviction and the severity of the sentences imposed.
Legal Issues
- Whether the identification evidence presented at trial, including a contested photo identification procedure conducted by police, was properly admitted and sufficient to support the convictions
- Whether the sentencing discretion was exercised soundly, having regard to the overall head sentences imposed
- Whether new evidence about the appellant's classification as a high-risk inmate and the restrictive conditions of his custody at the High Risk Management Unit at Goulburn Correctional Centre should be admitted on the sentence appeal, and whether it warranted a lesser sentence
Decision
Conviction appeal: The Court dismissed the appeal against conviction. The judgment addressed the identification evidence at length, including the circumstances in which multiple witnesses viewed a video of twenty photographs and identified the appellant as photograph number 18. Although some witnesses had asked to re-view portions of the recording, and a constable had made a comment during one witness's viewing process, the Court found no error warranting the verdicts to be disturbed.
Severity of sentence: The Court granted leave to appeal against sentence but ultimately dismissed the appeal. The sentences of eight years for each offence, imposed on an offender who was on parole at the time of the robbery, were not found to fall outside the range of a sound sentencing discretion. The Court treated the circumstance of the offending while on parole as a significant aggravating factor.
New evidence on sentence appeal: The appellant sought to tender an affidavit describing the highly restrictive conditions he experienced as an inmate classified as extreme high risk and housed in the High Risk Management Unit. The Court declined to admit this evidence as a basis for reducing sentence. Relying on R v Many (1990) and R v Killick [2002] NSWCCA 1, the Court held that an offender with a history of escaping or attempting to escape from custody cannot claim a sentencing discount because correctional authorities respond by holding that person in conditions of heightened security. The new material would not have led the sentencing judge to impose a lesser sentence.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against severity of sentence granted
- Appeal against sentence dismissed
Key Takeaways
- In dismissing both the conviction and sentence appeals, the Court of Criminal Appeal confirmed that identification evidence arising from photo board procedures is not automatically rendered inadmissible by minor irregularities in the viewing process, provided the overall circumstances do not indicate unfairness undermining the verdicts.
- Offending while on parole is a significant aggravating feature that weighs against a finding that an eight-year head sentence for serious armed robbery fell outside the range of sound sentencing discretion.
- An offender's classification as a high-security or extreme-high-risk inmate, and the more restrictive custodial conditions that follow, does not of itself entitle that offender to a reduction in sentence where the classification flows from their own history of escape or attempted escape.
- New evidence will only exceptionally be admitted on a sentence appeal: the Court reaffirmed the principle from R v Many that such evidence may be admitted where an applicant failed to appreciate its significance, but found that principle did not extend to evidence about custodial classification arising from the offender's own conduct.
- Under s 97(2) of the Crimes Act 1900 (NSW), armed robbery carries a maximum penalty of 25 years' imprisonment, reflecting the serious nature of offences involving the use of a dangerous weapon.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)
Cases:
- Alexander v The Queen (1981) 145 CLR 395
- Festa v The Queen [2001] HCA 72; 208 CLR 593
- Maric v R (1978) 52 ALJR 631
- Mraz v The Queen (1955) 93 CLR 493
- R v Blick [2000] NSWCCA 61; 111 A Crim R 326
- R v Killick [2002] NSWCCA 1; 127 A Crim R 273
- R v Many (1990) 51 A Crim R 54
- R v R (1989) 17 NSWLR 608
- Stanoevski v The Queen [2001] HCA 4; 202 CLR 115
- Wilde v The Queen (1988) 164 CLR 3