R v Gordon

Case [2004] NSWCCA 45

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      REGINA v Stephen Andrew GORDON [2004]  NSWCCA 45

FILE NUMBER(S):
60404/03

HEARING DATE(S):               5/3/04

JUDGMENT DATE: 11/05/2004

PARTIES:
Stephen Andrew GORDON (Appellant)
Regina (Respondent)

JUDGMENT OF:       Simpson J Kirby J Bell J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          02/21/1159

LOWER COURT JUDICIAL OFFICER:     Gibson DCJ

COUNSEL:
Ms E Wilkins (Crown)
Ms A Francis (Appellant)

SOLICITORS:
S Kavanagh
S O'Connor (Appellant)

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Evidence Act 1995

DECISION:
Dismiss the appeal against conviction
Grant leave to appeal against the severity of sentence
Dismiss the appeal against sentence

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60404/03

SIMPSON J
KIRBY J
BELL J

Tuesday 11 May 2004

REGINA v Stephen Andrew GORDON

Judgment

  1. SIMPSON J:  I agree with Bell J.

  1. KIRBY J:  I agree with Bell J.

  1. BELL J: On 23 September 2002 the appellant was arraigned before his Honour Judge J X Gibson QC (the Judge) on an indictment that charged him with two counts of robbery while armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 (NSW). Each count related to an incident that took place at the Windsor branch of the Westpac Bank on 20 September 2001. Count one charged the appellant with the armed robbery of a teller named Renee Andrews. Count two charged the appellant with the robbery of a second teller, Margot Shore. The appellant pleaded that he was not guilty of each count and stood trial. The jury returned verdicts of guilty in respect of each count on 25 September 2002.

  2. The maximum penalty for an offence under s 97(2) is imprisonment for a term of 25 years. On 22 November 2002 the appellant was sentenced to imprisonment for a term of eight years in respect of each offence. The sentences were directed to commence on 22 November 2004. A non-parole period of three years was specified. The sentences were accumulated on sentences for other offences to which the appellant pleaded guilty.

  3. The appellant appeals against his conviction and seeks leave to appeal against the severity of the sentences imposed on him.

    The facts

  1. At about 3:55 pm on 20 September 2001 a man entered the Westpac Bank in George Street, Windsor holding a shortened firearm in one hand and a bag in the other hand. He instructed customers to lie on the floor. He approached the counter, shouting, “Hoy” to the teller, Renee Andrews. He pointed the firearm at her head and ordered her to put twenty and fifty dollar notes from her cash drawer into a small backpack, which he handed to her.

  1. Margot Shore, another teller, was standing to the left of Ms Andrews. She observed the robber and the gun. The robber ordered Ms Shore to put cash from her cash drawer into the bag that he had given to Ms Andrews. She did as she was instructed. Ms Andrews placed…

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Details
AGLC
R v Gordon [2004] NSWCCA 45
Case
[2004] NSWCCA 45
Decision Date

CaseChat Overview and Summary

The appeal concerns the conviction of the appellant, Gordon, who was found guilty of robbery and related offences. The case originated from an armed robbery at the Westpac Bank in Windsor, where the appellant allegedly held up the bank and made off with approximately $12,000 in cash. The prosecution relied on witness statements and bank security camera footage to identify the appellant as the robber. The appellant was arrested and during a search of his premises, distinctive Asics running shoes were found which matched those worn by the robber in the bank footage. Despite the appellant's refusal to participate in an identification parade, he was subsequently convicted of robbery and other related charges.

The primary legal issues before the court were whether the identification evidence was admissible and whether it was sufficient to support the appellant's conviction beyond reasonable doubt. The court had to determine the weight to be given to the identification evidence, which included descriptions from bank staff and customers, and the circumstantial evidence of the matching Asics running shoes found during the search of the appellant's premises. The court also needed to consider the reliability of the bank security camera photographs, which, while not definitive, were suggestive of the appellant's involvement.

The court found that the cumulative effect of the identification evidence and the circumstantial evidence of the matching shoes was sufficient to satisfy the prosecution's burden of proof. The court noted that while the bank security camera photographs were not clear enough to conclusively identify the appellant, they did not exclude him as the robber. The court further held that the descriptions provided by the bank staff and customers, particularly the distinctive features such as the Asics running shoes, were reliable and corroborated each other. Therefore, the court was satisfied that the identification evidence, when considered with the other evidence, was sufficient to support the conviction. The appeal against the conviction was dismissed.

The court also considered the appellant's appeal against the severity of the sentences imposed. The court held that while the sentences were severe, they were within the range appropriate for the gravity of the offences committed. The court noted the appellant's previous criminal history and the seriousness of the robbery, which involved the use of a firearm and caused significant distress to the bank staff and customers. The appeal against the severity of the sentences was also dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against his conviction and seeks leave to appeal against the severity of the sentences imposed on him. The facts At about 3:55 pm on 20 September 2001 a man entered the Westpac Bank in George Street, Windsor holding a shortened firearm in one hand and a bag in the other hand. He instructed customers to lie on the floor. He approached the counter, shouting, “Hoy” to the teller, Renee Andrews. He pointed the firearm at her head and ordered her to put twenty and fifty dollar notes from her cash drawer into a small backpack, which he handed to her. Margot Shore, another teller, was standing to the left of Ms Andrews. She observed the robber and the gun. The robber ordered Ms Shore to put cash from her cash drawer into the bag that he had given to Ms Andrews. She did as she was instructed. Ms Andrews placed the sum of approximately $12,000 into the bag. She then handed it back to the robber who left the bank. A staff member activated the Bank’s silent alarm system and shortly after the robbery Senior Constables Stuart and Taylor arrived at the scene. Statements were taken from Ms Andrews, Ms Shore and a number of the customers of the bank, including Fiona Bigeni, Joanne Masini and Nadine Huxley. Each gave a description of the robber. On 9 October 2001 the appellant was in custody at the Mt Druitt police station in relation to another matter. Constable Stuart sought to interview him in connection with the robbery of the Westpac bank. The appellant declined to be interviewed or to participate in an identification parade. Later that day the police executed a search warrant on the premises at which the appellant had been living. During the search Constable Stuart located a pair of blue and white Asics brand jogging shoes. The design of the joggers was distinctive. Bank security camera photographs depicted the robbery as it was unfolding. The quality of the photographs was such that it was not possible to establish that the appellant was the robber nor to exclude him as being the robber. The Asics running shoes found in the course of the search of the appellant’s premises were similar to the running shoes worn by the offender which were plainly visible in the bank security photographs. In statements made on the day of the robbery the following descriptions of the robber were given to the police:Renee Andrews“The man was about 180 cm tall, he had really blonde hair that was short and scruffy, he had fair skin, he was wearing a short-sleeve shirt that had a collar and two buttons at the top, it was a light colour. The man was quite skinny and he looked like a druggy. I think he could have been wearing a ring that was silver. I didn’t see the bottom half of him at all.”Fiona Bigeni “I saw a male who was about six foot tall, slim build, wearing a light coloured shirt and dark coloured pants. The pants were more like track pants. He would have been in his early twenties.”Joanne Masini “In his early twenties, about six foot two inches tall, short clippered blonde hair which I would call a number two or three cut, fair complexion, clean shaven with pimples and pimple scars on his cheeks, wearing a creme coloured baseball cap worn normally with the peak at the front, a short sleeve top and casual clothing.”Nadine Huxley “About in his mid-twenties, about five foot ten inches tall, average build, short light brown or blonde hair, clean shaven with severe acne scars, medium complexion, wearing a dark coloured baseball cap with the peak correctly positioned to the front, a fleecy light blue coloured short sleeved sloppy joe, long dark coloured pants, short white sport socks and light coloured joggers.”Margot Shore “Australian male, about twenty-five years old, six foot tall, slim build, very blonde short hair which was scruffy. His complexion was similar to mine, fair. His face appeared long to me. He was wearing a sandy beige sloppy joe which had something written on the front and the collar of the sloppy joe had a contrasting colour to the beige. He may have been wearing a baseball cap on backwards. His voice was very firm voice but you could tell there was agitation in the voice.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SIMPSON J

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Ratio Decidendi

Legal Principle Established

Established by: SIMPSON J

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