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District Court 31 March 2023

R v Gee

[2023] NSWDC 327

Fraud & dishonestyTheft & property

Citation: R v Gee [2023] NSWDC 327
Court: District Court of New South Wales
Date: 31 March 2023
Judge: Judge Haesler SC DCJ

Background

The offender had previously been sentenced by the same judge in February 2018 for unrelated serious offences and was released to parole in December 2021. Shortly after release, he resumed illicit drug use, associated with former criminal contacts, and came to police notice on multiple occasions. His parole conduct was assessed as deeply unsatisfactory, and he was taken into custody for breach of parole on 15 February 2022.

The current offence arose from events in early 2021. Four men committed an armed robbery in southern Wollongong, stealing opals valued at approximately half a million dollars. The offender became involved in the subsequent disposal of some of those stolen opals, acting effectively as an agent for a co-offender named Alcock. He assisted in finding buyers, participated in arrangements over several weeks, and travelled interstate to Melbourne funded by another co-offender, Munn, for the purpose of selling the stones.

Police intercepted telephone communications that captured the offender's involvement. He was spoken to by police in Melbourne in May 2021 but allowed to leave at that time. He was arrested for the current offence on 18 May 2022, while already in custody on the parole breach. He pleaded guilty to knowingly dealing with the proceeds of crime under s 193B(2) of the Crimes Act 1990 (NSW), which carries a maximum penalty of 15 years' imprisonment.

  • What is the appropriate objective seriousness of the offender's role in dealing with the proceeds of a serious armed robbery?
  • How should the offender's profound personal disadvantage and diminished moral culpability be weighed against the purposes of sentencing, including community protection?
  • How do parity principles apply when sentencing the offender alongside co-offenders Munn and Alcock?
  • Whether special circumstances existed to justify a variation from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • What sentencing adjustment flows from an early plea of guilty?

Decision

Objective seriousness. The court assessed the offence as occupying a real level of seriousness, though the offender's role was subsidiary to that of Alcock and Munn. He had no involvement in the robbery itself and did not have direct charge of the stolen opals. However, he took active steps over several weeks, engaged in multiple transactions, and travelled interstate as part of the scheme. The large value of the opals increased the seriousness of the conduct. His Honour reiterated the principle, applied in the earlier Munn sentencing, that those who assist in converting the proceeds of crime are subject to heavy penalties because such assistance is essential to the viability of acquisitive crime.

Disadvantage and moral culpability. The court had before it substantial material about the offender's background, including evidence of childhood trauma, poor education, limited life skills, chronic drug dependence, and significant institutionalisation from having spent almost all of his adult life in custody. His Honour accepted that this background reduced his moral culpability and gave full weight to that consideration. At the same time, the court noted that the offender's extensive criminal record did not entitle him to leniency and required greater weight to be placed on community protection, consistent with Veen v The Queen (No 2). His Honour observed the tension that longer periods of imprisonment further diminish the offender's capacity to function in the community upon release.

Parity. Applying parity principles, the court reached the same starting point for the offender as it had for Munn. The court acknowledged differences, including the offender's more extensive criminal record and greater background disadvantage compared with Munn, and the fact that, unlike Munn, the offender was on conditional liberty at the time of offending. These factors were weighed against each other, and the overall sentence reflected comparable treatment at the starting point level.

Plea and special circumstances. The offender received a 25% reduction in the otherwise appropriate sentence for his early plea of guilty, with the figure rounded down in his favour. Special circumstances were found to exist, but only on a limited basis, grounded in partial accumulation on the balance of the parole period already being served. The extended parole period was not primarily motivated by rehabilitation optimism, as the court expressed a guarded prognosis given the entrenched cycle of custody, drug use, and reoffending.

Orders Made

  • Sentence commenced: 18 May 2022
  • Total term: 2 years and 7 months
  • Non-parole period: 1 year and 10 months, commencing 18 May 2022
  • Eligible for release to parole: 17 March 2024
  • Parole period: 9 months from date of release
  • Total sentence expires: 17 December 2024

Key Takeaways

  • A subsidiary but active role in converting proceeds of a serious armed robbery, including interstate travel and participation in multiple transactions over several weeks, carries real objective seriousness even where the offender had no part in the underlying robbery.
  • Profound childhood disadvantage and entrenched institutionalisation can reduce an offender's moral culpability and attract full weight on sentence, even where that background has not prevented repeated reoffending.
  • Under the parity principle, like must be compared with like: differences in criminal history, background, and conditional liberty status at the time of offending are all relevant variables when calibrating sentences across co-offenders.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) can be found on a limited basis, such as partial accumulation on an existing parole period, without necessarily reflecting an optimistic rehabilitation prognosis.
  • The District Court noted, consistent with Veen v The Queen (No 2), that an extensive criminal record requires greater weight on community protection, but also that prolonged incarceration itself erodes an offender's capacity to cope in the community upon release, creating a tension that sentencing courts must navigate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1990 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)

Cases
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162
- R v Windle [2012] NSWCCA 222
- Afu v R [2017] NSWCCA 246
- Ramos v R [2018] NSWCCA 206
- Paterson v R [2021] NSWCCA 273
- R v Munn [2022] NSWDC 264
- R v Alcock [2023] NSWDC 326
- R v Herring (1956) 73 WN (NSW) 203