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Court of Criminal Appeal 25 May 2012

Gebara v R

[2012] NSWCCA 107

Assault & violenceTheft & propertyFirearms & weapons
CRIME SENTENCE AGGRAVATED ARMED ROBBERY OFFENDERS

Citation: Gebara v R [2012] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 25 May 2012
Judges: McCallum J (primary), Basten JA, Hoeben JA

Background

The applicant pleaded guilty in the District Court to two counts of aggravated armed robbery under s 97(2) of the Crimes Act 1900, with the circumstance of aggravation being the use of a dangerous weapon. The first offence occurred at a Bankstown brothel, where the applicant and a co-offender used a handgun to steal approximately $2,300 from a doorman. Two days later, the applicant participated in a supermarket robbery at Wiley Park, this time waiting in a getaway car while two co-offenders, at least one of whom he knew to be armed, robbed staff inside.

The applicant was sentenced to an aggregate of six years imprisonment with a non-parole period of four years. He sought leave to appeal on three grounds, challenging the weight given to medical evidence, the distinction drawn between his role and that of his co-offenders, and the characterisation of his offences as more serious than the category addressed in the guideline judgment in R v Henry.

  • Whether the sentencing judge gave adequate consideration to medical evidence documenting the applicant's longstanding emotional and psychological difficulties, including ADHD
  • Whether the judge failed to properly distinguish the applicant's lesser role in the second offence from that of his co-offenders, giving rise to a justifiable sense of grievance
  • Whether the judge erred in treating the offences as more serious than the category of offence considered in the Henry guideline judgment
  • Whether a mathematical error in calculating the guilty plea discount affected the validity of the sentences imposed

Decision

On the first ground, the Court of Criminal Appeal found no error. The sentencing judge had engaged extensively with reports from three medical practitioners and had plainly used the compelling subjective case, including the medical evidence, to mitigate the sentences that would otherwise have been imposed. The Court noted that the circumstances justifying appellate intervention over the weight given to mitigating factors are narrowly confined, and the applicant's argument that the judge should have used the material to reduce the sentence rather than to refrain from increasing it was not persuasive given the judge's finding that the offences were more serious than typical.

On the second ground, the Court found that the judge had acknowledged the applicant's lesser role in the second offence. The judge had also taken into account that the co-offender Elbadar was 18 years old at the time, significantly younger than the applicant who was 23, which rationally explained a degree of differentiation in their sentences. No justifiable sense of grievance was established.

On the third ground, the Court held it was plainly open to the sentencing judge to treat these offences as more serious than those addressed in the Henry guideline. The Henry decision concerned the less serious s 97(1) offence, whereas the applicant was sentenced under the aggravated s 97(2) provision. The amounts stolen were not trivial, the offences were committed in company, the first involved actual violence against a vulnerable person late at night, and the second occurred only two days after the first.

The Court also noted a mathematical discrepancy in the calculation of the 25% guilty plea discount, observing that the judge's arithmetic produced an actual discount closer to 20%. However, the Court was satisfied that the overall result was appropriate and that no lesser sentences were warranted, invoking s 6(3) of the Criminal Appeal Act 1912 to decline to disturb the outcome on that basis alone.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Appellate intervention over the weight a sentencing judge assigns to mitigating factors, including medical evidence, is narrowly confined; extensive engagement with that material by the judge will ordinarily preclude a finding of inadequate consideration.
  • Where a sentencing judge finds that offences are more serious than is typical, using compelling subjective material to avoid exceeding the Henry guideline range is consistent with, not contrary to, proper sentencing practice.
  • The Henry guideline judgment addressed offences under s 97(1) of the Crimes Act 1900; the Court confirmed it was open to treat s 97(2) offences (aggravated by use of a dangerous weapon) as falling above that guideline category.
  • A mathematical error in calculating a guilty plea discount does not automatically vitiate a sentence; under s 6(3) of the Criminal Appeal Act 1912, the Court may decline to disturb the result if the overall sentence imposed was appropriate.
  • Differences in the ages of co-offenders can rationally support some sentencing differentiation even where roles in an offence were broadly comparable.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 97(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Henry (1999) 46 NSWLR 436
- R v Baker [2000] NSWCCA 85
- Johnson v R; Moody v R [2010] NSWCCA 124
- Yang v R [2012] NSWCCA 49