New South Wales Court of Criminal Appeal CITATION : Regina v Gee [2000] NSWCCA 457 FILE NUMBER(S) : CCA 60772/98 HEARING DATE(S) : 01/11/00 JUDGMENT DATE : 1 November 2000 PARTIES : Regina v Stephen Robert Gee JUDGMENT OF : Giles JA at 39; James J at 40; Whealy J at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/31/0481 LOWER COURT JUDICIAL Judge Armitage OFFICER : COUNSEL : L. M. B. Lamprati - Crown Appellant in Person SOLICITORS : S. E. O'Connor - DPP LEGISLATION CITED : Crimes Act CASES CITED: R v Maddox CCA 25 July 1993 R v Henry [1998-99] 46 NSWLR 346 DECISION : Grant an extension of time. Grant leave to appeal against sentences. Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60722/98 GILES JA JAMES J WHEALY J WEDNESDAY 1 November 2000 REGINA v Stephen Robert GEE JUDGMENT 1 GILES JA: The Court is in a position to give judgment now and I will ask Whealy J to give the first judgment. 2 WHEALY J: This is a severity appeal by Stephen Robert Gee. The appellant was found guilty by a jury at Newcastle on 8 September 1998 in respect of four charges of robbery whilst armed with an offensive weapon. The offences were all committed in 1997, on 6 June, 4 July, 25 July and 1 August. On 13 November 1998 he was sentenced by Judge Armitage in respect of each of the four offences to a minimum term of imprisonment of five years and an additional term of imprisonment of one year and eight months. His Honour ordered that the minimum terms be served concurrently commencing on 1 August 1997 (when the appellant had been taken into custody) and expiring on 31 July 2002. For the reasons his Honour gave, no "special circumstances" were found. 3 On 16 November 1998 the appellant appealed against both conviction and sentence. On Friday, 26 May 2000, the Court of Criminal Appeal, having heard the appeal against conviction, dismissed it. The Court comprised Spigelman CJ, Grove and Hidden JJ. It appears that the appeal against sentence was not heard at that time. 4 On 10 July 2000 the appellant filed a further document headed "Notice of Appeal or Application for Leave to Appeal". It appears from this document the appellant may be misguided to an extent as to the nature of the appeal with which this Court is now dealing. The grounds of appeal, for example, referred to in that document include a reference to errors in the Court of Criminal Appeal judgment of 26 May 2000. Nothing turns on that because it is clear that this is not an appeal against that decision. 5 The appellant also lodged a notice of application for extension of time, although it does not seem that this application, strictly speaking, is necessary. The Court has already indicated that it proposes to grant an extension of time, if that is needed. 6 On the hearing of this appeal the appellant was unrepresented. Mr Lamprati appeared for the Crown. 7 The additional matters urged upon the Court by the appellant are set out in a document which was sent to the Registrar on 29 October 2000. There are four grounds of appeal: (1) His Honour erred in balancing the sentence in absence of subjective material his Honour ordered on 8 September 1998. (2) His Honour erred in evaluating medical evidence and the effect a long term of imprisonment could have and endure after release. (3) His Honour erred in balancing demands of the community for punishment and retribution and the same interests of the community for rehabilitation of the offender. (4) His Honour erred in fostering consistency in sentencing as per comparative sentences of that time. 8 Before considering these grounds it is necessary to say something about the facts of these matters. The sentencing judge described the modus operandi in relation to the robberies as follows: "In each case the prisoner's modus operandi was to approach a single female teller in the bank or building society he intended robbing and to reveal to that teller a secreted weapon which appears to be a firearm, at the same time making a verbal demand for money in a soft voice. In each case a calico bag was produced in which the money was to be placed and on each occasion the prisoner was dressed in a similar manner, including the wearing of a jacket, joggers, a baseball cap and sunglasses. The weapon was described in each count of the indictment as 'an object resembling a firearm'. It is clear from the more detailed description of what happened in relation to each offence that the bank or building society teller was shown the wooden handle of what would have appeared to have been a firearm." 9 His Honour found from the evidence of those who were robbed that, as was to be expected, in each case the teller was genuinely fearful for her own safety. 10 The appellant, who was then thirty-eight years of age, had a criminal record commencing in the Children's Court in 1975, namely for comparatively minor offences. The sentencing judge, however, noted that on 13 February 1989 he was sentenced to imprisonment for three years and nine months with a non-parole period of one year and four months for an offence of larceny as a bailee. There was an application for leave to appeal against the severity of this sentence but it was dismissed by the Court of Criminal Appeal at a later date. 11 The sentencing judge noted that the previous convictions for offences involving personal violence were assault police in 1978, unlawful assault in 1989 and common assault in 1998. It appears the last offence was committed after the offences for which the appellant had been found guilty. 12 On 8 September 1998 the legal representative for the appellant had requested the court to direct that a pre-sentence report be done in relation to the outstanding sentencing proceedings. The judge acceded to that request and on that day ordered a pre-sentence report. The sentencing proceeding came on again on 8 October 1998 and it was adjourned on that day until 13 November 1998. 13 At the outset of the sentencing proceedings on 13 November 1998 it was suggested that the probation and parole report was still not available. A transcript, however, has been provided to this Court and it appears that in fact the report was available and there were copies of it. A short adjournment was obtained and it appears that instructions were obtained from the appellant as to his views on the pre-sentence report. When the matter resumed after the short adjournment the legal representative for the appellant, Mr Dalton, said that he objected to the tender of the pre-sentence report. He explained why and at the end of his objection he said, "In any event that is the position we have been left in respect of the report". 14 The Crown in those circumstances did not press the report but made it available to the appellant's legal representative if he wished to tender it. His Honour said, "Yes, all right, if the report is not pressed that is the end of the pre-sentence report". In the appellant's case, however, there was material placed before the sentencing judge at the hearing. There was an extensive report from Adam Ferrier, a psychologist, dated 11 November 1998. This report detailed the life history of the appellant and referred in considerable detail to his education, employment, health and family situation, including his relationship with his present partner and all of his children. It particularly describes a serious motor bike accident he had had in 1980 and the serious consequences of that accident. These included the present level of pain associated with significant back and knee injuries. It appears that the appellant's knee had been completely rebuilt and he had had ongoing surgery on his back, including a spinal fusion. 15 The report then proceeded to detail tests which had been made for the intelligence and personality of the appellant. These tests showed that he was in the lower end of the average range of intelligence and that his personality was free from severe psychopathology or clinical syndromes. The report noted that he was extremely close to his de facto partner, his children and his extended family and he showed a genuine concern for the welfare of his loved ones and the distress his imprisonment was causing them. 16 It was said, however, in the report that the appellant possessed the necessary personality characteristics to successfully deal with the stresses of imprisonment. It also said the psychological effect of his motor accident and his family history of heart disease were probably quite minimal. The report concluded that he had a resilient nature and had the ability to take hardship in his stride. 17 Dr P C Giles of Rathmines provided a short note which confirmed that the appellant had undergone a spinal fusion as a consequence of the motor bike accident and suggested that he be allowed facilities for exercise and appropriate furniture in gaol, as these factors could have a significant influence on pain levels. 18 The learned sentencing judge had also the benefit of a touching letter from the appellant's daughter, Cherie, who spoke of the degree to which she and her son were missing the appellant on account of his imprisonment. In addition, his partner, Lee Anne Paterson, wrote a similar letter describing the deep family relations and the concern they all had for the fact that the appellant was kept away from the family. Finally, Chaplain Gary Ferguson at MRRC Silverwater provided a reference dated 11 November 1998 which spoke very highly of the appellant. 19 The sentencing judge came to the view that there was nothing before him which could legitimately be described as "special circumstances". He noted the prisoner had a not insignificant criminal record and that he had continued to offend since committing the present offences for which he had been convicted. Finally, his Honour summarised the situation in the following way: "In imposing sentence I take into account first, the objective seriousness of all four offences; secondly, the need to deter both the prisoner and others from committing similar offences; thirdly, the various subjective matters that have been raised on the prisoner's behalf, in particular his physical impairment as dealt with in the report of Dr Giles and Mr Ferrier. I note too the other documents placed before me in evidence this morning, in particular the letters from the prisoner's daughter and his de facto wife. I also have regard to the fact that each of offence was committed alone, no weapon was actually brandished and that the only person in whom fear was engendered was the particular teller who was approached. It is also important to recognise ... that no effort was made by the prisoner to, in effect, rob the whole bank." 20 His Honour decided that, because all four offences had been committed within a comparatively short space of time, he thought it appropriate to impose concurrent sentences. His Honour then imposed the sentences which I have set out earlier. 21 I return now to the grounds of appeal and to the matters argued on this appeal. In my opinion, there is no substance in the first ground. First, the material was available, that is the pre-sentence report, but it was not in evidence, first, because the appellant's legal representative objected to it, and secondly because, despite the invitation, his legal representative, presumably on instructions, consciously chose not to tender it. In any event a full psychologist's report from Adam Ferrier which extensively detailed considerable favourable subjective matters, was taken into account, along with the other material to which I have referred. 22 As to the second ground, the reports from Mr Ferrier and Dr Giles expressly addressed from a medical and psychological point of view issues relating to the imprisonment of the appellant. As I have already indicated, his Honour expressly took those reports into account. The evaluation of this particular issue was one of the factors his Honour needed to consider in the overall assessment of an appropriate sentence. The weight to be given to it was a matter for the sentencing judge. It could not be said that he did not take it into account. 23 The appellant was today critical of the fact that information about his family situation was not before the court. However, as I read the report of Mr Ferrier, there was extensive material of that kind before the court. 24 I turn then to the final two grounds. It is convenient to deal with these at the same time. May I say at the outset that only some seven months after the appellant was sentenced the Court of Appeal gave its guideline judgment in Regina v Henry [1998-99] 46 NSWLR 346. This guideline related to offences under s 97(1) of the Crimes Act, that is to say, the kind of offence for which the appellant had been convicted in this case. 25 Two points may be briefly made: First, the statistics kept by the Judicial Commission in respect of armed robbery offences, the court said, showed such inconsistency in sentencing practice and in systematic excessive leniency that it was appropriate to formulate a guideline judgment. (See the decision of Spigelman CJ at p 371 para 110 and Wood CJ at CL at p 387 para 213.) 26 It is to be observed that the very statistics set out on pp 369-370 of the guideline judgment are included among the bundle of documents which the appellant has placed before us today in support of his fourth ground of appeal. 27 The second matter to which I wish to draw attention in the judgment is the passage at p 380 between paras 161 and 170. His Honour the Chief Justice at p 380 line 162 set out a category of case which he said attracted the guideline. This category of case possessed a number of characteristics which were set out and these were: (i) A young offender with no or little criminal history; (ii) a weapon like a knife capable of killing or inflicting serious injury; (iii) a limited degree of planning; (iv) limited, if any, actual violence, but a real threat thereof; (v) victim in a vulnerable position, such as a shopkeeper or taxi driver; (vi) a small amount taken; (vii) plea of guilty. 28 At para 165 his Honour said: "In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term." 29 On p 381 at para 169 his Honour said: "Aggravating and mitigating factors will justify a sentence below or above the range as this Court's prior decisions indicate. The narrow range is a starting point." 30 This guideline, of course, was given after the appellant's sentence. Nevertheless, the principles are in my opinion relevant to the issues before this Court on appeal. 31 The appellant's main grievances in relation to these two grounds of appeal are that first, he was more harshly treated than many other offenders and secondly, that insufficient weight was given to his subjective circumstances. The offences for which the appellant was sentenced, however, were very serious. On 6 July 1997 he robbed, using the method of operation already described, the Commonwealth Bank at East Maitland of $1,800; on 4 July 1997 he robbed the Ellemore Vale branch of the Greater Building Society of between $1,400 and $1,500; on 25 July 1997 he robbed the Lambton branch of the same building society of about $2,200. The fourth robbery was on 1 August 1997; this time it was the Warners Bay branch and the appellant made off with about $1,200. In each case, as the sentencing judge found and I have already described, tellers who were confronted with an apparent firearm were genuinely fearful for their safety. 32 The law regards robbery, with or without arms, as a very serious offence indeed. In virtually every sentence it is to be treated as an offence of the utmost gravity which should normally carry a custodial sentence (see Regina v Maddox Court of Criminal Appeal, 25 July 1993). 33 In the present case it must be said there were a number of factors which legitimately might have been taken by the sentencing judge as matters which entitled him to view this matter as falling into the more serious category for this type of offence. These were the following matters: (1) The appellant was a mature man of thirty-eight; (2) he presented with a poor criminal record, including offences involving dishonesty and violence; (3) the offences were clearly planned with the bank and building societies deliberately targeted; (4) there were no pleas of guilty and no contrition or remorse. 34 In addition, there was not one robbery but four committed over a period of approximately two months. 35 In my opinion the learned sentencing judge took into account the appellant's subjective circumstances, including the physical difficulties flowing from his 1980 accident and including the special relationship with his partner, his daughter and her son and his extended family. The judge also took into account all the matters raised on his behalf by Mr Ferrier, Dr Giles and the chaplain at Silverwater. He made allowance for the fact that the offences were committed alone, that no weapon was actually used and that the only persons in whom actual fear was engendered were the tellers. 36 In my opinion his Honour extended as much compassion and sympathy to the appellant's subjective situation as he, the appellant, was entitled to receive. Significantly, his Honour made an order that the sentences for the offences be served concurrently. 37 In my opinion the sentences, although high, were well within the range and were not excessive. It must be remembered the maximum penalty for these offences was twenty years imprisonment. His Honour was clearly entitled to find there were no special circumstances. The appellant had re-offended since committing the robberies and the judge expressly found this did not auger well for his rehabilitation. The weight his Honour put on the fact that the appellant had committed offences after the robberies was a matter for him. No error has been shown in that regard. 38 In all the circumstances I would propose that the appeal be dismissed. 39 GILES JA: I agree. 40 JAMES J: I also agree. 41 GILES JA: The formal orders will be that, if an extension of time to apply for leave to appeal be necessary, grant an extension of time. Grant leave to appeal against sentences. Dismiss the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.