Citation: SHERIDAN, Geoffrey Gordon v R [2008] NSWCCA 14
Court: NSW Court of Criminal Appeal
Date: 5 February 2008
Judge(s): Beazley JA, James J, Kirby J
Background
The appellant pleaded guilty in the District Court to armed robbery, committed on 14 September 2005 at a Glenfield newsagency. Wearing a balaclava and gloves, and carrying an object that appeared to be a shortened firearm, he demanded cash from the proprietor and fled with approximately $800. The robbery was a planned, deliberate offence.
The sentencing judge, Mahoney ADCJ, imposed a head sentence of eight years with a non-parole period of six years, commencing 12 March 2006. That commencement date reflected the fact that, from 26 September 2005 to 12 March 2006, the appellant was serving out the balance of a revoked parole period from an earlier sentence. He had committed the armed robbery while on parole.
The appellant sought leave to appeal against the sentence in the Court of Criminal Appeal, contending it was excessive.
Legal Issues
- Whether the sentence of eight years with a six-year non-parole period was within the appropriate range for the offence and the offender's circumstances
- Whether the sentencing judge erred in the treatment of the goods in custody offence taken into account on sentence
- Whether comparisons with sentences imposed in other armed robbery cases demonstrated that the challenged sentence was excessive
Decision
James J, with whom Beazley JA and Kirby J agreed, reviewed the sentencing judge's findings in detail. The sentencing judge had assessed the offence as falling in the middle range of seriousness for armed robbery under s 97(1) of the Crimes Act, but towards the upper end of that range. Factors informing that assessment included the significant planning evident from the disguise, gloves, backpack and apparent weapon, as well as the serious psychological and financial impact on the victim, who ultimately sold his business and became unemployed.
The Court accepted the sentencing judge's findings and considered the appellant's subjective circumstances, which included a deprived and unstable childhood but also an extensive criminal history featuring prior convictions for robbery and armed robbery, and the aggravating circumstance that the offence was committed while on parole.
On the comparison argument, the Court applied the principle stated by Hunt CJ at CL in R v Morgan: it is not appropriate to compare a challenged sentence directly with sentences imposed on other (non-co-) offenders for similar crimes. The relevant question is whether the challenged sentence falls within the range appropriate to the objective gravity of the offence and the subjective circumstances of this offender. Applying that test, the Court found the sentence was within that range.
The Court granted leave to appeal but dismissed the appeal.
Orders Made
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing comparisons with other offenders (who are not co-offenders) are not a valid ground for establishing that a sentence is excessive; the correct question is whether the sentence falls within the range appropriate to the specific offence and offender.
- Committing an offence while on parole is a significant aggravating factor that a sentencing court is entitled to weigh alongside criminal history when determining the appropriate sentence.
- A sentence start date may properly be set to the date from which the offender's custody was solely attributable to the offence being sentenced, where the offender was also serving a revoked parole period concurrently.
- Sufficient evidence of planning, including the use of disguise, gloves, a backpack, and an apparent weapon, can place an armed robbery towards the upper end of the middle range of seriousness even absent physical violence or confirmed accomplices.
- Victim impact, including serious psychological trauma, forced sale of a business, unemployment, and damage to a marriage, is a proper consideration in assessing the gravity of an armed robbery offence.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 97(1) (armed robbery, maximum 20 years imprisonment)
- Crimes Act (NSW), s 527C (goods in custody, maximum 6 months imprisonment)
- Crimes (Sentencing Procedure) Act (NSW)
Cases:
- R v Henry (1999) 46 NSWLR 346
- R v Morgan (1993) 70 A Crim R 368
- The Queen v De Simoni (1980-1981) 147 CLR 383
- Veen v The Queen (No 2) (1987-1988) 164 CLR 465