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Court of Criminal Appeal 29 June 2015

Gardener v R

[2015] NSWCCA 170

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE ARMED ROBBERY CARRIED IN CONVEYANCE RELEVANCE OF GENERAL DETERRENCE APPEAL AGAINST SENTENCE

Citation: Gardener v R [2015] NSWCCA 170
Court: NSW Court of Criminal Appeal
Date: 29 June 2015
Judges: Price J, R A Hulme J (primary judgment), Davies J

Background

The applicant was sentenced in the District Court in January 2013 for armed robbery and being carried in a stolen vehicle, offences under ss 97(1) and 154A(1)(b) of the Crimes Act 1900 (NSW). The robbery involved the applicant and a co-offender entering a Crows Nest jewellery store armed with a claw hammer and an axe, threatening three staff members, and stealing approximately $10,000 worth of jewellery and gold and silver chains. The offence was planned and occurred just twelve days after the applicant had been released on parole.

The applicant received a head sentence of seven years with a non-parole period of three years and six months for the armed robbery, with a concurrent sentence of one year and six months for the stolen vehicle offence. The sentencing judge described his criminal history, which commenced in the Children's Court when he was ten years old, as "long, complex and appalling," and noted extensive prior offences involving dishonesty, violence, and multiple armed robberies.

The applicant sought leave to appeal on five grounds, centring on the sentencing judge's treatment of his mental health conditions, drug and alcohol issues, rehabilitation prospects, the refusal to defer sentence under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and manifest excess.

  • Whether the sentencing judge erred in her approach to the applicant's mental illness and its effect on the applicable sentencing factors, including general deterrence, specific deterrence, prospects of rehabilitation, custodial conditions, and community protection.
  • Whether the sentencing judge erred in principle by refusing to defer sentence under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to allow the applicant to undertake a rehabilitation program.
  • Whether fresh or new evidence submitted on appeal was admissible, and on what basis.
  • Whether the sentence of seven years with a non-parole period of three years and six months was manifestly excessive.

Decision

Mental health and sentencing approach: The Court of Criminal Appeal found no error in the sentencing judge's approach to the applicant's significant personal circumstances. Those circumstances included an Aboriginal background marked by extreme domestic violence, childhood sexual abuse in juvenile detention, severe cognitive impairment (placing him in the bottom five percent of the population), probable bipolar disorder, ADHD symptoms, personality dysfunction, and chronic institutionalisation. The sentencing judge had given full weight to these matters, particularly in calibrating the non-parole period.

Deferral of sentence (s 11): The Court found no error in principle in the sentencing judge's refusal to defer sentence to allow participation in a rehabilitation program. Even had deferral occurred and the program been completed successfully, the Court observed that the applicant's long-term rehabilitation prospects would still have required circumspection. A finding of "good" prospects warranting a reduced sentence was highly unlikely in the circumstances.

Fresh evidence: The Court held that the proper grounds for admitting fresh or new evidence on appeal had not been established. The additional material was considered relevant only in the event of a re-sentencing, which did not arise.

Manifest excess: To succeed on this ground, the applicant was required to demonstrate that the sentence was unreasonable or plainly unjust, applying the standard from Markarian v The Queen [2005] HCA 25. The Court found the head sentence of seven years could not be so characterised, given the serious and planned nature of the offence, the applicant's commission of it while on parole for prior armed robberies, and his extensive history of violent offending. The non-parole period of three years and six months was described as reflecting a "very careful and sympathetic" assessment of subjective circumstances. Even accounting for the additional evidence tendered on appeal, the Court concluded that a lesser sentence was not warranted.

Orders Made

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

Key Takeaways

  • No error was established in the sentencing judge's approach to mental illness in the context of armed robbery sentencing, where the judge had carefully weighed the applicant's significant personal disadvantage against the gravity of the offending and the need for community protection.
  • The Court of Criminal Appeal confirmed that refusal to defer sentence under s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) will not constitute error in principle where poor rehabilitation prospects mean a deferred sentence would likely not produce a materially different outcome.
  • Under the test in Markarian, a sentence is manifestly excessive only where it is unreasonable or plainly unjust; a serious, planned armed robbery committed by an offender on parole with an extensive history of similar offending will generally not meet that threshold.
  • Applying Bugmy v The Queen [2013] HCA 37, the Court recognised the continuing relevance of profound childhood disadvantage and deprivation to sentencing, but this did not displace the need to weigh all purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Fresh evidence tendered on a sentence appeal that fails to meet the proper grounds for admission will not be considered, except potentially in the context of a re-sentencing exercise that does not in fact occur.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 97, 154A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 11
- Criminal Appeal Act 1912 (NSW), s 6
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Brown [2009] NSWCCA 6; 193 A Crim R 574
- R v Chandler; Chandler v R [2012] NSWCCA 135
- R v Farrell [2014] NSWCCA 30
- R v Hemsley [2004] NSWCCA 228
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
- R v Trindall [2002] NSWCCA 364; 133 A Crim R 119
- Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465