R v Gee

District Court of NSW|2023-03-31

Introduction

On 16 February 2018, I sentenced Brandon Gee for a number of serious offences. He was released to parole on 2 December 2021, a slightly longer period in custody than I had anticipated.
In that earlier judgment, I noted his tragic history and the sad fact that he had spent two periods in juvenile detention and that he had spent almost all of his adult life in gaol. He has repeatedly been released to parole and repeatedly breached the promises he made to himself and his family and friends to be of good behaviour.
I noted, having considered his history, that the effects of profound deprivation do not diminish over time. A background of the kind he endured as a child and young adult can leave a mark on a person throughout their life and compromise their capacity to mature and learn from experience.
I also then noted that the purposes of sentencing were not solely restricted to an offender.
Although Gee had done some courses in custody, it is clear that when released to parole, he was not well‑equipped for life in the community. He soon came to police notice and was before the Local Courts. He was involved in a number of relatively, compared to the matters I deal with, minor matters.
It is also clear that soon after release he took up the use and abuse of illicit drugs again. Prosocial friends and family were not able to influence him. He fell in with old associates and committed further offences.

Facts for sentence

Gee's offending had its genesis in a significant armed robbery that was committed in southern Wollongong in February 2021. Four males, one armed with a gun, another with a machete, stood over two people and stole opals valued at approximately half a million dollars.
Having successfully taken those stones, the robbers then had to convert them into something they could use. A number of people, I am aware, came into possession of some of those opals. One of them was Alcock who is for sentence next week: R v Alcock [2023] NSWDC 326. The police investigation led to his phone being subject to lawful intercepts. Those intercepts picked up Alcock and Gee participating in transactions and arrangements with another man, Munn, to dispose of a quantity of the opals: R v Munn [2022] NSWDC 264.
The extracts of the intercepts in the agreed facts indicate that Gee was effectively acting as Alcock's agent, attempting to find buyers for the stones and it is presumed that he expected some reward for doing so. Arrangements were made eventually to get some of the stones to Munn, and it is clear from the intercepts that Munn had possession of the opals. On 29 April 2021 a discussion was caught between Munn and Alcock how there was going to be a "pitch" for their sale.
While those matters concerned the other two, it is clear that Gee had some role in what was to occur as he was given money by Munn to enable him and Alcock to travel to Melbourne. Their aim in doing so was to sell the stones.
All of the offenders were spoken to by police in Melbourne on 11 May 2021. Alcock and Munn were arrested.
Although he was searched, Gee was allowed to leave. Further police investigation led to him being arrested for this matter on 18 May 2022. He was already in custody for breach of parole on 15 February 2022. His behaviour on parole having been assessed as deeply unsatisfactory.

Objective seriousness

I have to identify matters which indicate the seriousness of the offence and in doing so I look at the manner in which he dealt with the matter, the planning, the sophistication, any underlying criminal conduct, the value of the proceeds and any harm that was occasioned: Ramos v R [2018] NSWCCA 206.
As I said, when I sentenced Munn, while I have no exact understanding of the number of opals that he sought to involved himself with, the money they were talking about was not insignificant.
I do not have a victim impact statement, but its absence does not mitigate. The facts before me indicate the loss suffered by the victim of the initial robbery.
Again, as I said in Munn, a jewellery robbery has no point unless the goods are converted to cash or other saleable commodities. That is why heavy penalties are imposed on those who seek to dispose of the proceeds of crime. Those penalties are imposed in an attempt to deter them and others who might be tempted to act in a similar criminal way.
There is no evidence Gee was involved in the robbery, nor did he have charge of the proceeds, but that said, he played an integral but subsidiary role. He was acting, in a loose term, as an agent for Alcock. He went interstate with him. Funds had to be provided to him to enable him to do so, so it is clear that he was not well off at the time. The material before me indicates that he was living hand to mouth trying to survive and deal with a growing drug habit. But he took a series of active steps, and he engaged in a number of transactions over a period of some weeks. Some planning was involved but it was not particularly sophisticated, but it did involve actions by him. The obvious fact he was dealing in large quantities of jewellery, increases the seriousness of this offence. It must be taken into account.
I do not, however, as Mr Ashby who appears for him submitted, need to fix that degree of seriousness on some notional scale: Paterson v R [2021] NSWCCA 273 at [32] to [33]; Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 at [88].

Other relevant matters

I note the maximum penalty of 15 years is one guide to the exercise of my sentencing discretion.
I note that I have sentenced Munn and principles of parity apply here. Like must be compared with like: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Green v The Queen (2011) 244 CLR 462; [2011] HCA 49; Afu v R [2017] NSWCCA 246.
In terms of their involvement, it is hard, having only a limited summary of what they were doing, to distinguish between them. Munn did not have the same extensive criminal record as Gee, and his background, although sad and tragic, was not as significant as Gee's. He was not on conditional liberty.
I have received written submissions. They have informed this judgment. There is no significant difference between them.

The case for the offender

There is a huge amount of material before me about Gee's background. Given it is late on a Friday and we have fitted this matter in around a trial, I will not recount what I said in earlier proceedings, which was based on his evidence, the evidence of a partner, material from his sisters and a report by Ms Hubner, which is before me again.
I also have additional material from Ms Assaf, a social worker with Legal Aid. Where there are comments attributed to the offender indicating remorse or trying to downplay the objective seriousness of his role, I do not take them into account, but the background is particularly important and is sadly uncontroversial.
The headings I think should be sufficient: 1. "Childhood Foundations of Trauma and Disadvantage"; 2. "Poor Education and Future Opportunities"; 3. "Relationships", some of which were poor, some of which were very positive; 4. "Drugs and Alcohol Use as a Means of Coping"; 5. "Health", primarily in relation to psychological health and drug use; 6. "Finances", Gee does not have any skills at all even to maintain welfare payments as he has spent too long in gaol and detention. He finds tasks very difficult and disengages quickly; 7. "Institutionalisation", he has tried to change the vicious cycle of crime, drugs and disadvantage but his social deficits continued to disadvantage him, resulting in relapse. 8. "Service and Supports", he has limited support.
Gee told Ms Assaf that, "every time I get on drugs, I cut myself off from them. It's embarrassing." He has no clear plans about his future. He told Ms Assaf, he just he wants to start over. He has spoken to other prisoners and had a chance to review his life. He told Ms Assaf that after a fellow inmate died in custody it was, "a wake‑up call … It made me think about where I wanted to be in life. The last thing I want to do is die in this fucking shithole."
I am sure Gee has made similar promises in the past. I cannot have any confidence that he will not reoffend. Whatever he has learnt in custody has not helped him break the cycle.

Sentence structure

I have considered the question of special circumstances: s 44(2) Crimes (Sentencing Procedure) act 1999 (NSW). I can have no confidence that the entrenched pattern of gaol, drug use, offending and gaol will be broken within a short time. Community protection will be enhanced, if only briefly, by him staying in gaol until he is well and truly ready to be released, which is what occurred last time when parole was delayed from the date I set.
I make no finding of special circumstances except to make allowance for accumulation of this sentence on part of the balance of parole.
I have to structure the sentence in a way that reflects the breach of parole, the earlier sentence, my intentions on the earlier sentence and the fact he offended against other people while on parole. At the same time, I do not want to impose a date that is so far in the future that it means that he cannot have something to work towards because he must work towards a release date.
I propose to start this sentence on the date he was arrested for this matter, 18 May 2022.

Synthesis

Gee deliberately, in breach of his parole, engaged in serious criminality, and accordingly, a custodial sentence is required. Appropriate retribution has to be extracted. The consequences must be brought home to Gee, and others who attempted to do what he did. Penalties should be sufficiently severe to cause those tempted to offend as Gee did, to think again: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21; R v Windle [2012] NSWCCA 222.
It is, however, clear from the material before me that Gee does not have the moral culpability of someone who did not have such significant disadvantages. I will give full weight to those considerations, again. They still apply.
But there are other purposes of sentencing. His record not only does not entitle him to leniency. It means more weight has to be given to community protection: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at [477].
The problem with that consideration is that the longer he spends in custody, the less able he is to cope in the community. The evidence of that is before me in his criminal record and the material in the exhibits. But unless he and the authorities make a concerted effort, the future is looking bleak, and he may, as he fears, die in gaol.
After he has served the minimum this crime demands, I do not want him to return to gaol. Because if he returns to gaol, it means he has offended against others in the community once again. I would urge the State Parole Authority to do what it can to provide resourcing to him when he next becomes available for parole.

Orders

Although there are different factors that operate, I have reached the same starting point as I did for Munn. He will have, as did Munn, the full benefit of the utilitarian value of a plea of guilty, reducing the otherwise appropriate sentence by 25%, and I have rounded down to his advantage.
The sentence will commence on 18 May 2022. The term of the sentence is 2 years and 7 months. There will be a non‑parole period of 1 year and 10 months commencing on 18 May 2022. He will be eligible for release to parole on 17 March 2024. There will be a parole period of 9 months from that date. The total sentence will expire on 17 December 2024.
Mr Gee, as you get older, no matter how hard it is, if you want to avoid going back to gaol, you are going to have to take every opportunity that is offered to you. If you have not done anything to prepare yourself for release, if you have not got somewhere to go, you may as well keep your card on the door of your cell and you may, as you fear, die in gaol.
If that is not incentive enough to do everything you possibly can to avoid your old associates on release and deal with your underlying drug problem, I do not know, but you have got support from your sister, you have got support from Ms Corvalan. I hope you take the support offered.

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. Decision last updated: 21 August 2023

Crimes Act 1990(NSW)

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