AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 15 May 2012

Geddes v R

[2012] NSWCCA 94

Theft & property
CRIMINAL LAW APPEAL SENTENCE

Citation: Geddes v R [2012] NSWCCA 94
Court: NSW Court of Criminal Appeal
Date: 15 May 2012
Judges: Whealy JA, Hidden J, Schmidt J

Background

The applicant pleaded guilty to four offences arising from his involvement in a series of armed robberies in the Hunter region during late 2008. His role centred on monitoring a police-frequency scanner to warn accomplices of police movements during and after the robberies. He also drove accomplices during the planning and execution stages and helped conceal a stolen vehicle.

The sentencing judge in the Sydney District Court imposed a total effective sentence of 6 years and 3 months, with a non-parole period of 4 years, after allowing a 15% discount for guilty pleas and finding special circumstances. The applicant sought leave to appeal out of time, arguing the sentence was infected by two distinct errors.

  • Whether the sentencing judge erred by making comments during the hearing that suggested she had formed an adverse factual finding against the applicant on a contested matter, in circumstances where no formal finding was recorded and the applicant may have been sentenced on that adverse basis
  • Whether the sentencing judge erred by failing to make an adequate allowance for the fact that the applicant was held in protective custody throughout his sentence, which imposed harsher conditions on him than those experienced by the general prison population

Decision

On the first ground, the Court of Criminal Appeal accepted that the sentencing judge's remarks during the hearing, read in context, gave rise to a real possibility that she had treated the contested factual allegations (specifically, that the applicant provided a getaway vehicle and transport after the Heatherbrae Pie Shop robbery and the Hexham Bowling Club robbery) as established facts against him, without making a formal finding and without giving the applicant an opportunity to address that finding. This amounted to a sentencing error, because the applicant was entitled to have those contested matters properly resolved or disregarded.

On the second ground, the court found that the sentencing judge had not adequately accounted for the applicant's time spent in protective custody. Protective custody typically involves significantly more restricted conditions than general prison accommodation. The court confirmed, consistent with earlier authorities including R v Pham and R v Thompson, that a period spent in protective custody is a relevant factor that ordinarily warrants some reduction in the sentence that would otherwise be imposed, to reflect the harsher nature of that custody.

Having identified two errors warranting resentencing, the court re-exercised the sentencing discretion. It removed the adverse contested findings from counts 1 and 2 and reduced the sentence for count 2 from 20 months to 10 months. The non-parole period for count 4 remained at 2 years, but the commencement dates were restructured to reflect the corrected accumulation. Special circumstances were again found, given the proposed accumulation of sentences and the benefit of a longer supervised parole period.

Orders Made

  • Extension of time for leave to appeal granted
  • Leave to appeal against sentence granted
  • Original sentence set aside and the following substituted:
  • Count 1: Fixed term of 15 months, commencing 10 December 2008, expiring 9 March 2010
  • Count 2: Fixed term of 10 months, commencing 10 August 2009, expiring 9 June 2010
  • Count 3: Fixed term of 2 months, commencing 10 August 2009, expiring 9 October 2009
  • Count 4: Non-parole period of 2 years commencing 10 June 2010 (expiring 9 June 2012), with a balance of term of 2 years and 3 months expiring 9 September 2014
  • Total effective sentence reduced to 5 years and 9 months, with a non-parole period of 3 years and 6 months

Key Takeaways

  • A sentencing judge who makes remarks during the hearing that suggest an adverse factual finding on a contested matter, without formally resolving that contest or giving the offender an opportunity to respond, may infect the sentence with appealable error.
  • Protective custody conditions are a legitimate and relevant sentencing consideration. Where an offender serves time in protective custody, the more restrictive nature of that custody is a factor that ordinarily bears on the sentence imposed, consistent with the principle that like sentences should produce broadly comparable burdens.
  • The Court of Criminal Appeal confirmed the approach taken in R v Pham [2005] NSWCCA 94 and R v Thompson [2005] NSWCCA 340 that protective custody is not merely a background circumstance but warrants active consideration in the sentencing exercise.
  • Where two independent errors are identified on a sentence appeal, the appellate court will re-exercise the full sentencing discretion rather than simply adjusting the original sentence at the margins.
  • Finding special circumstances to adjust the ratio of non-parole period to total term remains available where an offender faces accumulated sentences and would benefit from extended supervised parole.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 97(2), 193B(3), 349

Cases:
- R v Pham [2005] NSWCCA 94
- R v Thompson [2005] NSWCCA 340; 156 A Crim R 467
- RWB v R [2010] NSWCCA 147; 202 A Crim R 209