Bain v R

Case [2006] NSWCCA 79 24 March 2006

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Bain v Regina [2006] NSWCCA 79

FILE NUMBER(S):
2005/1617

HEARING DATE(S): 31 January 2006

DECISION DATE: 24/03/2006

PARTIES:
John Bain
Regina

JUDGMENT OF: Sully J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0668

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

COUNSEL:
P. Barrett - Crown
G. Bashir - Appellant

SOLICITORS:
S. Kavanagh - Crown
S. O'Connor - Appellant

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

DECISION:
Leave to appeal against sentence granted
Appeal against sentence dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1617
SULLY J
ADAMS J
24 March 2006

John Douglas BAIN v REGINA

Judgment

Introduction

SULLY J: In August 2004 the applicant stood trial in the Parramatta District Court before his Honour Judge Phegan and a jury. The applicant was so tried upon a charge of robbery while armed with a shotgun. Such an offence contravenes section 97(2) of the Crimes Act 1900(NSW), and attracts upon conviction a statutory maximum penalty of imprisonment for 25 years. On 25 August 2004 the jury found the applicant guilty as charged. On 3 December 2004 the applicant was sentenced to imprisonment for a non-parole period of 6 years 4 months with a balance of term of 2 years 8 months. The total sentence was, therefore, one of imprisonment for 9 years.
The applicant now seeks leave to appeal against sentence. There are five notified grounds. It will be convenient to deal with them separately after having noted the general facts of the case.
The Material Facts
These are stated sufficiently for present purposes in the following extracts from the remarks on sentence:
“About 9 am on 2 December 2003, the prisoner was seen walking past the Bendigo Bank in Glenrose Shopping Centre located at Belrose, a matter that was recorded on closed circuit television in front of the bank premises. At about 9.30, the prisoner returned to the bank and entered the bank carrying a dark coloured sports bag. He walked to the manager’s office, which is situated in the public area of the bank separate from the teller area. The prisoner was wearing a baseball cap but beyond that there was no attempt to cover his face with any mask or material. He entered the manager’s office and drew from the sports bag an item which was hidden in a sock, which when revealed appeared to be a full length, double barrelled shotgun. The manager, Mr. Graham Auld, was sitting at his desk and the prisoner pointed the barrel directly at Mr. Auld’s head. He said to the Manager, “Take me to the money and the safe”. The manager complied and walked into the customer service area of the bank. By that time, because of the suspicion of other bank employees who had seen the prisoner enter the bank, the bandit screens on the teller counters had already been activated.
The manager entered the door which accessed the teller area…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bain v R

Details

AGLC: Bain v The Queen [2006] NSWCCA 79
Case: [2006] NSWCCA 79
Decision Date: 24 March 2006

CaseChat Overview and Summary

In the case of Bain v R, the applicant sought leave to appeal against the sentence imposed following a bank robbery. The applicant, Bain, was convicted for his role in the armed robbery of a Bendigo Bank in Glenrose Shopping Centre, Belrose, on 2 December 2003. The incident involved Bain entering the bank, brandishing a shotgun, and demanding money from the bank manager, Mr. Graham Auld. The manager complied, leading Bain to the bank's safe, where Bain instructed the manager to place the contents of the safe into a bag. Ultimately, Bain made off with approximately $43,500. The case was heard by the court which needed to decide on the grounds of appeal concerning the sentence imposed.

The legal issues before the court were centered around the grounds of appeal raised by the applicant. These included the severity of the sentence, the manner in which certain legal principles were applied, and whether the sentence was proportionate to the crime committed. The court was tasked with evaluating the merits of each ground of appeal and determining whether there was sufficient cause for the intervention of the court in reviewing the sentence.

The court thoroughly examined each of the five notified grounds of appeal. It found that none of the grounds presented a sufficient basis for the court to intervene and alter the sentence. The court's reasoning hinged on the principle that the sentence imposed was within the appropriate range for the crime committed and that the legal principles applied by the trial judge were correct. The court concluded that the sentence was fair and proportionate, and therefore, there was no cause for the appeal to be upheld.

In conclusion, the court rejected all grounds of appeal and dismissed the appeal against sentence. The court granted leave to appeal but ultimately found no cause for the intervention of the court in reviewing the sentence. The orders proposed by the court were that leave to appeal against sentence be granted, but the appeal against sentence be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The applicant now seeks leave to appeal against sentence. There are five notified grounds. It will be convenient to deal with them separately after having noted the general facts of the case. The Material Facts These are stated sufficiently for present purposes in the following extracts from the remarks on sentence:“About 9 am on 2 December 2003, the prisoner was seen walking past the Bendigo Bank in Glenrose Shopping Centre located at Belrose, a matter that was recorded on closed circuit television in front of the bank premises. At about 9.30, the prisoner returned to the bank and entered the bank carrying a dark coloured sports bag. He walked to the manager’s office, which is situated in the public area of the bank separate from the teller area. The prisoner was wearing a baseball cap but beyond that there was no attempt to cover his face with any mask or material. He entered the manager’s office and drew from the sports bag an item which was hidden in a sock, which when revealed appeared to be a full length, double barrelled shotgun. The manager, Mr. Graham Auld, was sitting at his desk and the prisoner pointed the barrel directly at Mr. Auld’s head. He said to the Manager, “Take me to the money and the safe”. The manager complied and walked into the customer service area of the bank. By that time, because of the suspicion of other bank employees who had seen the prisoner enter the bank, the bandit screens on the teller counters had already been activated.The manager entered the door which accessed the teller area and the prisoner continued to follow the manager holding the shotgun at the manager’s back. The prisoner continued to ask the manager to : “hurry up, stop wasting time”. The manager walked to the safe area which was located in the meal room at the rear of the area occupied by the tellers and attempted to open the safe but realised at that stage that a second key was necessary. The manager informed the prisoner that he was not able to open the safe without the additional key. He left the room and went to the office of another staff member at the front of the bank close to the manager’s own office, from whom he obtained the key. He was accompanied by that staff member back into the area where the safe was situated. The safe was unlocked and the prisoner then instructed the manager to place its contents in the bag which he had been carrying.Nine bundles of money were removed from the safe, including notes of various denominations which, it was subsequently estimated, amounted to a sum of $43,500. The prisoner then put the gun back into the sock and placed it on the top of the bag and walked out of the bank. It was at this point that he was again photographed on a closed circuit TV camera, a photograph which was subsequently widely circulated.The prisoner left the bank. He walked down a ramp to an underground car park and out of the rear of the shopping centre where he entered a motor vehicle, a yellow coloured old model Toyota Corolla station wagon, and left the scene of the robbery. It is not necessary for the purpose of sentencing to go into any further detail concerning the history of the investigation and subsequent arrest of the prisoner.”Ground 1

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SULLY J

I reject, therefore, Ground 5.Conclusions and Orders In my opinion cause has not been shown for the intervention of this Court. I propose these orders:[1]that leave to appeal against sentence be granted;[2] that the appeal against sentence be dismissed. ADAMS J: I agree with Sully J.

Ratio Decidendi

Legal Principle Established

Established by: SULLY J

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Actions

Citations

Bain v The Queen [2006] NSWCCA 79

Most Recent Citation

David EID v The Queen [2008] NSWCCA 255

Cases Citing This Decision

R v Dr [2021] NSWDC 118
Citation 1 (Para 143)

…or more deleterious than might ordinarily be expected for the specific offence: see R v Youkhana [2004] NSWCCA 412 per Hidden J at [26]; R v Bain [2006] NSWCCA 79; 161 A Crim R 36 per Sully J at [10]-[15]; R v Tuala [2015] NSWCCA 8 per Simpson J at [51]-[82].…
Hartley v The Queen [2020] NSWCCA 330
Citation 2 (Para 23)

…e fact that the 1986 offence occurred some 29 years prior to the present offence and consider, as Sully J expressed and approached it in Bain v R [2006] NSWCCA 79 at [23] that he is ‘entitled to some prudently measured consideration’ to having refrained for a longer rather than a short time before reoffending.”…
R v Toller [2018] NSWDC 287
Citation 3 (Para 18)

…ecision of Youkhana [2004] NSWCCA 412, and also paras [64] - [65], particularly at [65] where Sully J is quoted from his decision in the case of Bain [2006] NSWCCA 79.…
R v Tuala [2015] NSWCCA 8
Citation 4 (Para 64)

…In R v Bain [2006] NSWCCA 79; 161 A Crim R 36 the offender was convicted of armed robbery after trial. A victim impact statement attested to the significant emotional harm he suffered as a result. Sully J (with Adams J concurring) upheld a submission that it was an error on the part of a sentencing judge to accept…
David EID v The Queen [2008] NSWCCA 255
Citation 5

…ction Reports Act 1988 (Cth) CATEGORY: Principal judgment CASES CITED: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 Huynh v R [2006] NSWCCA 224 Bain v R [2006] NSWCCA 79; 161 A Crim R 36 R v Way [2004] NSWCCA 131; 60 NSWLR 168 PARTIES: David EID (Applicant) REGINA (Respondent) FILE NUMBER(S): CCA 2007/5637 COUNSEL: P…

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Cases Cited

Itaoui v Regina [2005] NSWCCA 415
Citation 1 (Para 6)

…In that context the principles relevant to Ground 3 are not in doubt. They are stated by this Court, (Studdert, Whealy, Howie JJ), in Itaoui v Reg [2005] NSWCCA 415. It is an error of principle for a sentencing Judge to set the non-parole period before considering whether or not he is disposed to make a finding of s…
R v Wilson [2005] NSWCCA 219
Citation 2 (Para 8)

…ovisions respecting victim impact statements; but be that as it may, the decisions of this Court in Reg v Slack [2004] NSWCCA 128 and in Reg v Wilson [2005] NSWCCA 219 seem to me to be clear authority supportive of the applicant’s submissions.…
R v Youkhana [2004] NSWCCA 412
Citation 3 (Para 2)

…The applicant attacks this finding of his Honour, relying upon a decision of this Court, (McColl JA, Levine and Hidden JJ), Reg v Youkhana [2004] NSWCCA 412. The applicant relies in particular upon the following portion of Hidden J’s reasons with which the other members of the Court agreed: “26. However, before a ju…
R v Slack [2004] NSWCCA 128
Citation 4 (Para 8)

…ise attending the current statutory provisions respecting victim impact statements; but be that as it may, the decisions of this Court in Reg v Slack [2004] NSWCCA 128 and in Reg v Wilson [2005] NSWCCA 219 seem to me to be clear authority supportive of the applicant’s submissions.…
R v Peckham [2003] NSWCCA 293
Citation 5 (Para 10)

…committed to a period of five years imprisonment, that is a non parole period of five years out of a total sentence of eight years and R v Peckham [2003] NSWCCA 293 in which the non parole period was six years out of a total sentence of eight years. However, I note that in both of those cases, there was a plea of g…
Regina v Daniel Shanks [2002] NSWCCA 438
Citation 6 (Para 10)

…do note two decisions in which the facts in a number of important respects were similar to those in this case. First of all the case of R v Shanks [2002] NSWCCA 438 in which the prisoner was committed to a period of five years imprisonment, that is a non parole period of five years out of a total sentence of eight…
R v Henry [1999] NSWCA 111
Citation 7 (Para 14)

…thing to be said is that the stated question cannot be answered by the mantra-like invocation of the guideline judgment of this Court in Reg v Henry (1999) 46 NSWLR 346. The applicant’s case has clear differences in profile from the hypothetical profile that the Court adopted for its purposes in Henry . I agree with…
Veen v The Queen (No 2) [1988] HCA 14
Citation 8 (Para 5)

…d that latter approach as contrary to both section 21A(2)(d) itself and to the principles established by the High Court in Veen v The Queen (No. 2) (1988) 164 CLR 465.…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 5)
Crimes Act 1900 (ACT)
1 mention (from Para 1)