Afu v R

THE FACTS OF THE OFFENDING

1. The sentencing judge found the facts of the offending to be as follows [2] : On 8 April using a car that had been obtained illegally[,] a group of offenders including Mr Afu went to the Birkenhead Hotel at Drummoyne. They entered the hotel. They had planned to confront staff and hoped to gain access to money held on the premises. One of the offenders had an axe, another was armed with a long rifle, another had a revolver. Thankfully, or luckily, Mr Clarke, a staff member, was able to avoid confrontation with the offenders. They left and went in search of other premises to rob. Later that evening the same five offenders entered the Melton Hotel in Auburn. There they threatened staff. They were armed with the same weapons as earlier; a rifle, a pistol and an axe. Over $20,000 was taken. A number of staff and patrons were threatened and intimidated. That was the purpose of the offenders arming themselves and entering the premises en masse. Police were aware that a group including this offender was engaged or planning to be engaged in this sort of activity. There was some surveillance of them but that surveillance did not result at that time in the arrest of any of the principals. Police surveillance did however note the offender carrying a bag which was later found in his premises on his arrest. Police became aware that associates of Mr Afu were planning a further robbery. They were able to place a tracking device in the vehicle which had been obtained by those robbers. I am told and accept that there was a problem with that tracking device initially and the police were not able to prevent a serious armed robbery by a number of robbers of the Glasgow Arms Hotel. The tracking device, however, did activate. Police were on the scene almost immediately after that robbery. The vehicle was then able to be tracked to the offender's home in Lewisham. When police entered in the early hours of the morning of that day they found the persons who had robbed the Glasgow Arms Hotel. They also found proceeds of that robbery including a rifle that had been used in the robbery. There was evidence before Tupman [DC]J, and a submission is made and repeated by the Crown in these proceedings that I would find that the matters the subject of count 4, the pistol, and the Form 1, the Winchester rifle, should proceed on the basis that the bag with those weapons in it had been stored at the offender's premises for some time prior to his arrest. The bag he had been seen to carry into the house was also found to have in it a .38 calibre Smith & Wesson revolver and a .22 calibre Winchester rifle; weapons, which it appears, had been used in both the Birkenhead and Melton Hotel offences.

Ground 1 - His Honour failed to deliver a fair sentence in light of the sentences imposed on co-offenders

The sentences imposed on the co-offenders

1. The sentencing judge sentenced three co-offenders, namely David Mafi ("Mafi"), Raimondo Corak-Phan ("Corak-Phan") and Rajuel Khurana ("Khurana"). The Crown provided the following summary of the charges brought against all of the offenders, and the penalties imposed: OFFENCES APPLICANT MAFI KHURANA CORAK-PHAN Birkenhead Hotel (attempt) 4yrs 3yrs 4mths Form 1 3yrs 8mths Melton Hotel 5yr 10mth 4½yrs (with one Form 1 offence) 5yrs 4mths 5yrs 4mths Glasgow Arms Hotel 4½yrs 5yrs 8mths (with all 4 offences on the Form 1) 6½ years (with all 7 offences on the Form 1) Glasgow Arms (accessory) 1yr 9mths Northbridge Hotel Form 1 Possess unauthorised pistol 3½ NP 2yrs (Smith and Wesson revolver) (with two Form 1 offences) 3yrs NPP 1yr 9mths Smith and Wesson revolver (with one Form 1 Offence) Possess shortened firearm (not pistol) 1 year (shortened rifle used in Glasgow Arms Robbery) Form 1 (shortened rifle used in Glasgow Arms Robbery) Possess unauthorised firearm Form 1 (Winchester rifle) 1 year (Winchester rifle) Aggravated BE&S Form 1 Be carried in conveyance Form 1 (x1) Form 1 (x2) Form 1 (x2) (BMW and Audi) Form 1 (x4) (BMW) BMW and Audi Take and drive conveyance Form 1 SENTENCES APPLICANT MAFI KHURANA CORAK-PHAN Aggregate term 7yrs 6mths 7yrs 6mths 8yrs 8yrs 7mths Aggregate NPP 4yrs 6mths 4yrs 6mths 5yrs 5yrs 7mths Discount for plea 10% 25% 20% 18% Ratio NPP/Term 60% 60% 62.5% 65%

Submissions of the applicant

1. The written and oral submissions of the applicant emphasised what was said to be a justifiable sense of grievance, arising principally from the sentence imposed upon Mafi. It was submitted, in particular, that the offences committed at the Glasgow Arms and Melton Hotels were the primary offences, and that the applicant: 1. had played a role that was less than that of any of the other co-offenders; 2. was not involved in any planning, or at least was not involved to the same degree when compared with the co-offenders; 3. was "not the mastermind" of the offending.
2. The applicant further submitted that Mafi deserved greater punishment because (inter alia) he was on parole at the time of the offending. It was also submitted that the applicant demonstrated stronger prospects of rehabilitation than any of his co-offenders.

Submissions of the Crown

1. It was submitted on behalf of the Crown that there was no disparity in the sentences imposed. It was submitted that it was evident from the reasons of the sentencing judge that he was conscious of the need to apply parity principles, and that there were a number of important differentiating features between the applicant and Mafi, not the least of which was that Mafi had pleaded guilty at the earliest available opportunity and, as a consequence, had received the benefit of a greater discount on sentence.

Consideration

1. Consistency in the punishment of offences against the criminal law finds expression in the parity principle. That principle requires that like offenders be treated in a like manner, but also allows for different sentences to be imposed for the same offences to reflect different degrees of culpability and/or different circumstances [3] . Unjustifiable disparity is an infringement of the equal justice norm [4] .
2. The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. A court will refuse to intervene where disparity is justified by differences between co-offenders, such as age, background, criminal history, general character and the part that each has played in the relevant criminal conduct or enterprise [5] .
3. In the present case, the same judge sentenced all of the offenders. He was therefore fully aware of the circumstances of the offending, as well as the respective subjective cases. Where a sentencing judge recognises the importance of the parity principle and ostensibly gives effect to it, this Court will be cautious to intervene. Any disparity must be gross, marked, or glaring in order to justify such intervention [6] .
4. It is evident from the observations of the sentencing judge that he was mindful of the parity principle when he came to sentence the applicant. His Honour commenced by saying [7] : I hav[e] sentenced three of the other co-offenders in similar or the same enterprises the subject of the proceedings now before me. As with all such proceedings the objective material and the subjective material is different although there is much similarity between the matters I have previously dealt with and this one. Care needs to be taken as when I sentence in relation to this offence in this offender, I am aware that in relation to some of the others different facts were before me, different matters were contested and no[t] contested. Further, each of the offenders had different subjective cases and each of the other offenders pleaded guilty at different times and [they] were entitled to different levels of reduction of the otherwise appropriate sentence because of the utilitarian value of their pleas of guilty.
5. Later, his Honour said [8] : There were pleas of guilty in each of those matters but different reductions for the utilitarian value of that plea and different considerations in relation to the plea applied for each offender. I have to be careful, as Mr Pickin reminded me, not to focus on the sentences imposed on others but to focus on what this offender did. Because of the similarities and because of my need to avoid any justifiable sense of grievance to this offender and others those sentences obviously guide the exercise of my discretion in this matter and I will endeavour to apply consistently the principles of sentences which I applied in those matters.
6. There were two principal differences between the respective subjective cases of Mafi and the applicant. Firstly, Mafi had pleaded guilty at the first available opportunity and had therefore been given the benefit of the discount of 25%. As previously noted, the applicant's pleas of guilty came at a very late stage, as a consequence of which he was given a discount of 10%.
7. Secondly, it is apparent from reading the sentencing judge's remarks in relation to Mafi that there were a number of favourable subjective circumstances upon which the present applicant could not rely. In particular, his Honour was satisfied that Mafi had suffered from learning and comprehension difficulties and that he had poor verbal intellectual capacity, and limited non-verbal cognitive capacity. In these circumstances, he concluded that Mafi was a person whose limited capacity and maturity had had an effect on his ability to calculate the risk of committing serious offences and the consequences of his behaviour.
8. These matters go to explain the respective sentences which were imposed upon Mafi on the one hand, and the applicant on the other.
9. For all of these reasons, this ground lacked substance.

Ground 2 - His Honour failed to give proper credit for pre-sentence rehabilitation (delay)

The evidence

1. In a letter tendered on sentence the applicant said (inter alia) the following [9] : I let myself down, for I was taken advantage of and influenced by close friends, I had considered as family, tear my life and family apart, with lies, drugs and the love of money causing havoc, in and around my life, creating a lost, selfish and reckless mess within myself. Though I take full responsibility of my actions I allowed it to happen not being aware of the real severe consequences. My past is history, with a valuable life lesson learnt, that bad company corrupts good character. Which mislead me, my judgment right from wrong, justifying the bad choices I have made in the past, blinded by criminal associates with the mentality of being a would-be, wana-be gangster.

The findings of the sentencing judge

1. In dealing with the issue of delay, his Honour said [10] : This matter has taken almost three years to come to this stage. I am sure that it has weighed heavily upon Mr Afu but the choice was his. He has utilised that time to his advantage. I will take that into account, but when it comes to expressions of remorse they come far, far too late to have any significant bearing on these proceedings except to give me some hope that a turning point has been reached in his life. A matter I will address later.
2. His Honour found that there had been some "growing maturity" on the part of the applicant since his offending [11] , before saying [12] : On one level his prospects for the future look grim. He must spend a rather significant period of time in custody. If he had not learnt during his last time in custody it is unlikely he will learn from this period. But on a positive note he appears to have dealt with his drug problem during his last period in custody. It appears from the material before me that there is some growing insight and growing maturity. It is hoped that the passage of time alone will assist in his rehabilitation, that is assisting in understanding that unless he changes his ways more and heavier gaol sentences will be imposed.

Submissions of the applicant

1. The applicant submitted that the sentencing judge had failed to give him credit for overcoming his drug addiction, in circumstances where such addiction was said to be "a primary reason for the offending". He emphasised the contents of the testimonials tendered on sentence [13] which had variously referred to his determination to improve himself, his engagement in drug and alcohol counselling, his undertaking an apprenticeship and his pursuit of employment opportunities which had been made available to him.

Submissions of the Crown

1. The Crown submitted that it was evident from the remarks of the sentencing judge that the applicant's progress towards rehabilitation had been taken into account as a matter of significance. It was submitted that, properly understood, the gravamen of the applicant's complaint in respect of this ground was that the sentencing judge had failed to give sufficient weight to that factor. The Crown submitted that questions of weight were quintessentially matters within the discretion of the sentencing judge, with which this Court would be reluctant to interfere.

Consideration

1. It is evident from those parts of the sentencing remarks set out at [23]-[24] above that the sentencing judge had regard to the applicant's steps towards rehabilitation. As the Crown submitted, the applicant's real complaint is that the sentencing judge gave insufficient weight to those factors. In order to establish a basis for the intervention of this Court, it is not sufficient for an applicant to assert that a sentencing judge gave insufficient weight to one fact or another. [14] Indeed, unless the sentence can be said to be manifestly excessive, it is not possible to assess what "weight" has been given to a specific factor which has been expressly identified in the judge's reasons. The applicant must demonstrate a House v The King [15] type error. Nothing put on behalf of the applicant demonstrates such an error. Accordingly this ground was without substance.

Ground 3 - His Honour failed to recognise the common elements across offences and imposed a sentencing (sic) excessively accumulative

The reasons of the sentencing judge

1. After noting that he was imposing an aggregate sentence, the sentencing judge said the following [16] : There must be some accumulation of sentences. There must be some individual punishment for each of the matters before me. There are some common features. I must take care to step back and look at the overall criminality and impose a sentence which is just and proportionate to that overall criminality taking into account both objective and subjective features and the purposes of sentencing. These will be lengthy sentences. Care also needs to be taken when imposing long sentences that one [does] not in the process crush or impair a process of rehabilitation which has been undertaken.

Submissions of the applicant

1. The applicant did not make any specific submissions in support of this ground. However, the ground appears to assert that there was excessive accumulation in the sentences imposed, and that this was a consequence of the failure of the sentencing judge to recognise elements of the offending which were common to more than one of the offenders.

Submissions of the Crown

1. The Crown submitted that it was apparent that the sentencing judge was mindful of the fact that there were common features in the offending, and that he had taken those factors into account.

Consideration

1. The sentencing judge made express reference, in the passage set out at [28] above, to the fact that there were features common to more than one of the offences. In circumstances where his Honour imposed an aggregate sentence, any degree of concurrence and accumulation can only be inferred. In any event, questions of concurrence and accumulation were matters within the discretion of the sentencing judge, and no error has been demonstrated.
2. It follows that this ground lacked substance.

Ground 4 - His Honour erred in taking into account as an aggravating factor the characterisation of the offending as "gangster type crimes"

The reasons of the sentencing judge

1. As set out at [22] above, the applicant provided a letter to the court in which he referred to having a "mentality of being a would-be, wana-be gangster". In the sentence proceedings before his Honour [17] the following exchange took place between the sentencing judge and counsel then appearing for the applicant: HIS HONOUR: …. They were living a gangster lifestyle. That's how they saw themselves and they hadn't learnt the lesson - that hadn't learned the lesson that was meant to have been learnt by their previous time in prison and which Judge Walmsley was confident had been learnt. COUNSEL: Yes, your Honour. there's no getting away from that. HIS HONOUR: No, you can't see it but Mr Afu is nodding his head at me.
2. In his remarks, the sentencing judge said [18] : It is clear that Mr Afu with a number of associates chose in April 2013 to engage in planned, thought out robberies at premises which they knew would or might be occupied by patrons. Their motivation was greed. Their motivation was also partly, I belief, bravado, to behave, as the offender himself acknowledges, as "gangsters".
3. The sentencing judge later said [19] : The Courts must, by the severity of sentence imposed, signify not just the disapproval of the community but impose, in cases such as this, retributive sentences designed to deter others from thinking that a gangster lifestyle is somehow acceptable and that gangster type crimes are somehow acceptable.

Submissions of the applicant

1. It was made clear in oral submissions that this ground of appeal relied primarily upon what his Honour had said in [35] above. It was submitted on behalf of the applicant that the sentencing judge had erred in treating the applicant's "gangster lifestyle", and his commission of "gangster type crimes", as aggravating factors. To the extent that his Honour's statements stemmed from what the applicant himself had said in the letter tendered in the sentence proceedings, it was submitted that it was "quite unfair" for his Honour to have made the comments in the terms in which he did. It was submitted that the only reasonable conclusion was that in referring to "gangster type crimes" his Honour was referring to the fact that the offences were committed in company. It was submitted that his Honour had incorrectly treated that as an aggravating factor under s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and had therefore double-counted when imposing sentence.

Submissions of the Crown

1. The Crown submitted that the construction of his Honour's remarks advanced by the applicant was not one that was reasonably open. It was emphasised, in particular, that his Honour's reference to "gangsters" was in the same terms as those adopted by the applicant himself in his letter to the court.

Consideration

1. In making the references that he did, his Honour adopted the description of the applicant's offending, and his lifestyle, in precisely the same terms which had been used by the applicant himself. It was expressly accepted by the applicant's solicitor before this Court that it was necessary to view his Honour's comments in that context. It was not just a colourful way of saying the offences were committed in company. Given such context, there is no basis for asserting that his Honour engaged in any double-counting by taking into account an element of an offence as an aggravating factor.
2. This ground had no substance.

Ground 5 - His Honour erred in his approach to a finding of special circumstances pursuant to s. 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which led to the imposition of a sentence that was manifestly excessive

The findings of the sentencing judge

1. The sentence judge made a finding of special circumstances in the following terms: [20] Mr Afu, the community will be assisted if you continue as promised. This was recognised by those who have supported you in your pro-social activities; working with youth, working with the police to avoid others falling into the same trap as you have. And, also by you working and raising a family. There is room, as Mr Pickin says, for a significant finding of special circumstances to recognise those steps and the need that they be fostered and encouraged and enable you time on release, with help, to adapt to normal community life.

Submissions of the applicant

1. Whilst acknowledging both the conclusion reached by the sentencing judge as to special circumstances, as well as the fact that such conclusion resulted in the reduction of the ratio between the head sentence and the non-parole period to one of 60%, it was submitted on behalf of the applicant that the steps that he had taken toward rehabilitation, and his demonstrated progress, warranted a more significant adjustment.

Submissions of the Crown

1. The Crown submitted that the differing circumstances applicable to the applicant on the one hand and Mafi on the other explained the variations made by the sentencing judge to the statutory ratio in each case. It was further submitted that it was evident that in reaching the conclusion that he did regarding special circumstances, the sentencing judge had taken into account all relevant factors.

Consideration

1. Having found special circumstances, it was a matter for the exercise of the discretion of the sentencing judge to determine the extent to which the statutory ratio was to be adjusted. In fact, the adjustment was significant, being a reduction of a little over 13 months, or 20% of the minimum term. Nothing submitted on behalf of the applicant establishes that such discretion miscarried in any way.
2. This ground was without substance.

ORDERS

1. For these reasons leave to appeal was refused.

Endnotes

1. Sentencing judgment at 7.
2. Sentencing judgment at 2.
3. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31].
4. Green at [31] - [32].
5. Green at [31].
6. Tuivaga v R [2015] NSWCCA 145 at [55] - [56].
7. Sentencing judgment at 1-2.
8. Sentencing judgment at 7.
9. Exh 6.
10. Sentencing judgment at 5.
11. Sentencing judgment at 9.
12. Sentencing judgment at 10.
13. Exh 3.
14. Zhao v R [2016] NSWCCA 179 at [59] and the authorities cited therein
15. (1936) 55 CLR 499; [1936] HCA 40
16. Sentencing judgment at 7.
17. Tcpt at 17.28 - 17.37
18. Sentencing judgment at 2.
19. Sentencing judgment at 11.
20. Sentencing judgment at 11. 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: 06 April 2018