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Court of Criminal Appeal 24 March 2006

Bain v Regina

[2006] NSWCCA 79

Also reported as 161 A Crim R 36
Assault & violenceTheft & propertyFirearms & weapons

Citation: Bain v Regina [2006] NSWCCA 79
Court: NSW Court of Criminal Appeal
Date: 24 March 2006
Judge(s): Sully J; Adams J

Background

The appellant was convicted by a jury in the Parramatta District Court of robbery while armed with a shotgun, contrary to section 97(2) of the Crimes Act 1900 (NSW). The offence involved entering a Belrose bank branch, drawing a double-barrelled shotgun on the bank manager, and forcing him to hand over approximately $43,500 from the safe. The maximum statutory penalty for this offence is 25 years imprisonment.

Judge Phegan sentenced the appellant to a total term of 9 years imprisonment, comprising a non-parole period of 6 years 4 months and a balance of term of 2 years 8 months. The appellant sought leave to appeal against that sentence on five grounds.

  • Whether the sentencing judge erred by treating the threat or use of violence as an aggravating factor under section 21A(2)(b), when it was already an element of the offence
  • Whether the sentencing judge correctly found "substantial emotional harm" as an aggravating factor under section 21A(2)(g), based on a victim impact statement
  • Whether the appellant's prior criminal history was properly taken into account as an aggravating factor under section 21A(2)(d)
  • Whether the overall sentence of 9 years, and the non-parole period of 6 years 4 months, fell within the acceptable range

Decision

On use of violence as an aggravating factor: The Court of Criminal Appeal accepted that the sentencing judge had erred by treating the threatened use of violence as an aggravating factor. Because threatening or using a firearm in the course of the robbery was itself an element of the offence under section 97(2), it could not be separately counted in aggravation. However, the Court found that this error did not, in the circumstances, infect the overall sentence to a material degree.

On substantial emotional harm: The Court applied the test from Reg v Youkhana [2004] NSWCCA 412, which requires evidence of emotional harm significantly more deleterious than what any ordinary person would suffer when subjected to an armed robbery. The bank manager's victim impact statement described ongoing nightmares, panic attacks, medication, difficulty working in the same office, hypervigilance, and disrupted sleep extending nearly a year after the offence. The Court held that this evidence was sufficient to establish substantial emotional harm within the meaning of section 21A(2)(g), satisfying both the threshold question of whether the evidence was capable of reaching that standard and the evaluative question of whether it actually did so.

On prior criminal history: The Court declined to treat the prior convictions ground as problematic. Drawing on the High Court's statement of principle in Veen v The Queen (No. 2) (1988) 164 CLR 465, the Court found that the appellant's antecedent history was legitimately relevant to moral culpability, dangerous propensity, and the need for deterrence. The offence was not a first-time aberration but reflected a continuing disposition to commit aggravated armed robbery.

On the overall sentence: The Court acknowledged that a head sentence of 9 years was severe, but was not persuaded it fell outside the available range. It also noted that a slightly shorter non-parole period may have been open to the sentencing judge, but concluded that 6 years 4 months was not outside the acceptable range. The appeal was therefore dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • Under section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court cannot treat as an aggravating factor any element that is already a constituent of the charged offence.
  • Applying Reg v Youkhana, a finding of "substantial emotional harm" under section 21A(2)(g) requires evidence specifically directed to that issue and demonstrating a harm significantly more deleterious than what an ordinary person would experience in the same circumstances. A victim impact statement describing persistent panic attacks, nightmares, medication, and disrupted functioning nearly a year after a robbery met that threshold.
  • Prior criminal history is a legitimate aggravating consideration under Veen (No. 2) where it reveals not an isolated aberration but a continuing disposition to offend, bearing on culpability, propensity, retribution, and deterrence.
  • An error in applying one aggravating factor does not automatically warrant intervention on appeal if it did not materially affect the overall sentencing exercise.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that armed robbery of a bank using a dangerous weapon remains among the most serious offences under NSW law, warranting a substantial sentence even where some sentencing factors are applied with technical error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- Reg v Youkhana [2004] NSWCCA 412
- Reg v Slack [2004] NSWCCA 128
- Reg v Wilson [2005] NSWCCA 219
- Veen v The Queen (No. 2) (1988) 164 CLR 465
- Itaoui v Reg [2005] NSWCCA 415
- R v Shanks [2002] NSWCCA 438
- R v Peckham [2003] NSWCCA 293