A report like that could provide a judge with a clearer picture of his background and subjective case and perhaps even reduce his sentence. Of course, obtaining a psychiatric report would naturally necessitate an adjournment or delay and Rae would not be sentenced that day, Rae's legal representatives told him in the cells beneath Newcastle District Court on August 17, 2018.

Rae thought about it and then asked what judge would likely sentence him that day.

"[Mr Rae] enquired as to which judge he had and I informed him we were in [Newcastle District Court Chief] Judge [Roy] Ellis's list," Rae's barrister at his first sentence, Bill Hussey, later wrote in an affidavit. "[He] expressed keenness to be sentenced by that judge. "[He] specifically instructed me that he wished to go ahead with being sentenced on that day by Judge Ellis."

And so on that day - August 17, 2018 - Rae was sentenced for his role in the theft of 39 firearms from Kennards Self Storage at Newcastle West in December, 2016.

But if Rae hoped drawing Judge Ellis meant he would be dealt with leniently, he was mistaken.

Benjamin Rae was jailed for a maximum of four-and-a-half years, with a non-parole period of three years, the same sentence his younger brother, Michael Rae, later received from another judge despite Michael Rae taking his matter to trial and being found guilty and Benjamin Rae pleading guilty and receiving a 25 per cent discount on his sentence.

Rae appealed against the severity of the sentence to the Court of Criminal Appeal, claiming a miscarriage of justice had occurred because his legal representatives had not made an application to adjourn his sentence so his mental health could be assessed and a report could be provided to the court.

Rae claimed in an affidavit as part of the appeal that he had been diagnosed in 2016 with bipolar disorder, generalised anxiety disorder and borderline personality disorder.

"I was keen for the proceedings to be over as soon as possible," Rae said in his affidavit. "However, if I had been advised that it was in my interest to obtain medical notes concerning my mental health history and that an adjournment could be sought for this purpose, I would have instructed my previous lawyers to seek such an adjournment."

The Court of Criminal Appeal allowed the appeal and sent the matter back to be re-sentenced before Judge Ellis in Newcastle District Court.

On Tuesday, Judge Ellis re-sentenced Rae and, taking into account his mental health issues, jailed him for a maximum of three years and nine months, with a non-parole period of two years.

Rae, who was eligible for parole in July, 2021, will now be eligible for parole on May 3 this year. Youngest Rae brother, Josh, was jailed for a maximum of 11 years in 2019 for an unrelated shooting.