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Gadsden v The Queen

Gadsden v The Queen

Case [2005] NSWCCA 453 14 December 2005

Non-Custodial Sentence

Criminal Law

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CITATION:
GADSDEN v R [2005] NSWCCA 453

HEARING DATE(S): 14 December 2005

JUDGMENT DATE:

14 December 2005

JUDGMENT OF:
Hodgson JA at 39; McClellan CJ at CL at 1; Hall J at 40

DECISION:
Appeal dismissed

CATCHWORDS:
CRIMINAL LAW - Crown appeal against sentence - armed robbery with an offensive weapon - whether undue weight given to subjective features and insufficient weight to objective seriousness - whether appropriate in exceptional circumstances to impose a non-custodial sentence - whether circumstances were exceptional - young offender - no prior convictions - good prospects of rehabilitation

LEGISLATION CITED:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Baker [2000] NSWCCA 85
R v Govinden (1999) 106 A Crim R 314
R v Henry (1999) 46 NSWLR 346
R v Lattouf, 1996, unreported, NSWCCA,
R v KM & Ors [2004] NSWCCA 65
R v Wall [2002] NSWCCA 42
R v Glen Wilson (2001) 125 A Crim R 450

PARTIES:
The Crown
Robert Geoffrey Gadsden (Resp)

FILE NUMBER(S):
CCA 2005/1509

COUNSEL:
J Bennett SC (Crown)
C B Craigie SC ( Resp)

SOLICITORS:
Solicitor for Public Prosecutions (Crown)
Legal Aid Commission of NSW (Resp)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
05/21/1061

LOWER COURT JUDICIAL OFFICER:
Donovan DCJ

2005/1509

HODGSON JA
McCLELLAN CJ at CL
HALL J
WEDNESDAY 14 DECEMBER 2005

GADSDEN, Robert Geoffrey v REGINA

Judgment

1 McCLELLAN CJ at CL: The respondent pleaded guilty to one count of armed robbery with an offensive weapon contrary to s 97(1) of the Crimes Act 1900 for which the maximum penalty is 20 years imprisonment.

2 The respondent also asked that an offence of assault with intent to rob whilst armed with an offensive weapon (which formed part of the same criminal activity) be included on a Form 1. That offence is also contrary to s 97(1).

3 The respondent was sentenced to 200 hours community service. The Director of Public Prosecutions appeals that sentence.

4 The offences occurred around 10 pm on 15 October 2004 when the respondent was in the company of two other males, Kyle Young and another young person. All three were in a vehicle belonging to the respondent. As the respondent drove his vehicle in Smith Street, South Penrith, they passed two persons, Mr Timothy Paterson and Ms Caroline Iglesias. The respondent then turned into a side street and parked the car.

5 All three got out of the vehicle and approached Mr Paterson and Ms Iglesias from behind. One of the males said “we’re coming after you, we’re going to catch you.” Mr Paterson was carrying backpacks belonging to himself and Ms Iglesias, which contained various items of property belonging to them both.

6 One of the three men was armed with a silver aluminium baseball bat. He walked around in front of the victims and waved the bat in front of the victims’ faces and yelled “give us your fucking money.” Mr Paterson told the male he did not have any. Both of the…

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 Gadsden v The Queen

Details

AGLC: Gadsden v The Queen [2005] NSWCCA 453
Case: [2005] NSWCCA 453
Decision Date: 14 December 2005

CaseChat Overview and Summary

The respondent, Gadsden, was convicted of armed robbery with an offensive weapon. The Crown appealed against the sentence of 12 months imprisonment, suspended over 24 months, on the basis that it was manifestly inadequate. The High Court of Australia heard the appeal. The central issue for the court was whether the primary judge had given undue weight to subjective features and insufficient weight to the objective seriousness of the crime, and whether it was appropriate in exceptional circumstances to impose a non-custodial sentence. The court also needed to determine if the circumstances were indeed exceptional, given the offender's youth, lack of prior convictions, and good prospects of rehabilitation.

The court found that the primary judge had given undue weight to subjective features and insufficient weight to the objective seriousness of the crime. The court held that a sentence of imprisonment, fully operative and served, was necessary to adequately reflect the community’s condemnation of the crime and to provide general deterrence. The court further found that the circumstances were not exceptional enough to justify a non-custodial sentence, particularly given the use of an offensive weapon during the commission of the crime. The court emphasised the need for sentences to reflect the objective seriousness of the crime, and to serve the purposes of denunciation, deterrence, and protection of the community.

In light of the above findings, the court allowed the appeal, set aside the sentence imposed by the primary judge, and remitted the matter to the Court of Appeal for re-sentencing. The court made it clear that the primary judge should consider the objective seriousness of the crime, and the need for general deterrence, when imposing a sentence. The court also highlighted that the use of an offensive weapon during the commission of the crime was a significant aggravating factor that needed to be taken into account.

Orders