AGUIRRE v R

AGUIRRE v R - [2010] NSWCCA 115 - NSWCCA 2010 case summary — Zoe

[36]

Ground 7 - The sentencing judge erred in failing to fix a non-parole period in the sentence for count 1 on the indictment 31 Section 45 of the Crimes (Sentencing Procedure) Act provides in part as follows:- "When sentencing an offender to imprisonment for an offence (other than an offence set out in the Table to Division 1A of this Part) a court may decline to set a non-parole period for the offence if it appears to the court that it is appropriate to do so…" 32 An offence under s 154C(2) is an offence set out in the Table to Div 1A of Pt 4 and, consequently, a sentencing court has no power to decline to set a non-parole period: SGJ v R, KU v R [2008] NSWCCA 258 at [78] per Kirby J, with whom the other members of the court agreed. Accordingly, the sentencing judge erred in imposing a fixed term of imprisonment for the offence charged in count 1. 33 Under s 6(3) of the Criminal Appeal Act the Court of Criminal Appeal has power to quash a sentence set by a sentencing judge and pass a sentence in substitution for that sentence, if the Court of Criminal Appeal is of the opinion that some other sentence, whether more or less severe, is warranted. 34 It was submitted on behalf of the applicant that the power under s 6(3) to impose a sentence more severe than that imposed by the sentencing judge should be exercised sparingly and that in the present case the Court of Criminal Appeal should not simply assume that, when the sentencing judge imposed a fixed term of imprisonment for the offence in count 1, the length of the fixed term imposed was the same as what would have been the length of the non-parole period, if the sentencing judge had imposed a sentence containing a non-parole period. 35 However, in the present case it is quite clear what sentence the sentencing judge would have imposed for the offence charged in count 1, if he had imposed a sentence containing a non-parole period. In his remarks on sentence his Honour:- "In terms of transparency of sentence in terms of Aguirre, the aggravated take and drive offence, given the plea of guilty and the discount appropriate, the sentence should be one of six years imprisonment to be served by way of a non-parole period of four years imprisonment." 36 In my opinion, the error made by the sentencing judge in the present case could be rectified by upholding this ground of appeal and substituting for the sentence imposed by his Honour a sentence containing a non-parole period, being a sentence consisting of a non-parole period of four years and a balance of the term of two years, having the same commencement date as the sentence set by the sentencing judge. The adoption of such a course would not make any difference to the total effective sentence for the applicant. 37 A separate submission was made by counsel for the applicant that the sentence imposed by the sentencing judge for the offence charged in count 1, whether regarded as a fixed term of four years or as a head sentence of six years with a non-parole period of four years, was manifestly excessive. I will consider this submission later in dealing with other grounds of appeal.

[40]

(a) - In finding that the applicant had a record of previous convictions (s 21A(2)(d) of the Crimes (Sentencing Procedure) Act ) 46 This ground was based on a part of the sentencing judge's remarks on sentence in which the sentencing judge said:- "The offender has a record of prior convictions. The Crown submits, and I think appropriately so, that it is limited by The Queen v Veen (No 2). While McGlashan has a criminal history, there are no similar matters or violent matters. Counsel for the offender submits that these are relatively minor matters and I think that is correct." 47 This part of his Honour's remarks could have been expressed more clearly but it seems to me that the expression "the offender" at least where first used, must be taken as referring to the applicant and not McGlashan. 48 The applicant did have a record of previous convictions. However, it was limited to driving offences, offences of goods in custody and offences of obtaining money by deception. There was no previous conviction for taking and driving a motor vehicle or for any kind of robbery. 49 It was submitted on behalf of the applicant that s 21A(2)(d) was subject to s 21A(4), which prohibits a sentencing court from having regard to an otherwise aggravating factor, if it would be contrary to any rule of law to do so; that the principles in Veen v The Queen (No 2) (1988) 164 CLR 465 have been held to be such rules of law; and that the applicant's record of previous convictions was not such as to fall within the principles in Veen (No 2) which would permit a more severe penalty to be imposed by reason of an offender's previous convictions. Reference was made to R v Johnson [2004] NSWCCA 76 especially at [32] to [35] per curiam and to R v Walker [2005] NSWCCA 109 especially at [27] per Johnson J, with whom the other members of the Court agreed. 50 I would accept each of the steps in counsel for the applicant's submission which I have just described. However, although the part of his Honour's remarks which I have quoted is not expressed as clearly as it might have been, I consider that a fair interpretation of what his Honour said is that his Honour, after considering the applicant's record of previous convictions, decided that he was prohibited from regarding this record as an aggravating factor. I consider that this interpretation should be inferred on the basis of his Honour's express reference to Veen (No 2), his Honour's mention that "there are no similar matters or violent matters" in McGlashan's criminal history (which was equally true of the applicant's criminal history) and his Honour's statement that he thought that counsel for the "offender's" submission, that the "offender's" previous offences were relatively minor, was correct. 51 I would reject this part of ground 4.

[41]

(b) - In finding the offence was committed in the home of the victim 52 This part of ground 4 applies only to the offence charged in count 1. 53 It was based on a part of the sentencing judge's remarks on sentence in which his Honour said:- "In terms of (eb) in relation to count 1, the offence was committed on the driveway immediately outside the home of the victim. The victim impact statement makes it clear what that impact has had on Mr Sadek, justifiably and understandably feeling insecure in his own home as well as with his own family members." 54 The fact sheet admitted without objection in the proceedings on sentence shows that Mr Sadek's car was parked in a carport on the driveway on his property. 55 It was submitted by counsel for the applicant that the offence was not committed "in" the home of the victim, the victim's "home" being limited to the house on his property. 56 The word "home" is not defined in the Crimes Act. However, counsel for the Crown pointed to the definition of "dwelling house" in s 4, which includes "(c) any building or other structure within the same curtilage as a dwelling house and occupied therewith or whose use is ancillary to the occupation of the dwelling house". A carport on a driveway on a person's property would fall within this definition. 57 Counsel for the Crown also referred to the second reading speech by the Attorney-General on the Bill which inserted s 21A(2)(eb) into the Crimes (Sentencing Procedure) Act. In his speech the Attorney General said that "any offence committed in the home of the victim…violates that person's reasonable expectation of safety and security". It seems to me that a person's reasonable expectation of safety and security would extend to a garage or carport on his property. 58 In my opinion, the sentencing judge did not err in holding that the first offence was committed "in the home" of the victim. 59 Even if the offence was not committed in the home of the victim within s 21A(2)(eb), the fact that the offence was committed on the victim's own property would be a factor affecting the relative seriousness of the offence within s 21A(1)(c) of the Crimes (Sentencing Procedure) Act.

[42]

(c) - In finding that the offence involved gratuitous cruelty 60 This part of ground 4 was based on a part of the sentencing judge's remarks on sentence in which his Honour said:- "(f) the offence involved gratuitous cruelty. The Crown urges that McGlashan was cocking the gun while aimed at the victim's head warrants a finding of gratuitous cruelty. In my view, it was certainly unnecessary and unprovoked on the facts before me. In the context of the overall violence, it was an act of cruelty unnecessary to achieve the objective of the robbery or the escape. This matter was recently considered by the Court of Criminal Appeal in McCullough v The Queen [2009] NSWCCA 94. Given the facts and the clear | and pervasive impact upon the victim, I do regard that act as an aggravating factor in that the action was "an end in itself, needless yet intentional violence committed simply to make the victim suffer"." 61 In his statement of the facts of the second offence his Honour had said:- "McGlashan pulled back the hammer on the gun while continuing to point it at Pignataro. At this point Pignataro believed he was about to be shot." 62 In the longer part of his Honour's remarks on sentence which I have quoted his Honour referred to "the offence", without expressly identifying the offence, but the offence his Honour had in mind would have to have been the second offence, which was the only offence in which McGlashan was a co-offender. 63 Counsel for the applicant submitted that, even if a finding of gratuitous cruelty was warranted against McGlashan, it was not warranted against the applicant, because the applicant was not responsible for McGlashan's act. It was submitted that at the time of McGlashan's act the joint criminal enterprise between the applicant and McGlashan had finished or, alternatively, any act of gratuitous cruelty by one of the offenders would, by its very nature, necessarily have fallen outside the scope of the joint criminal enterprise. 64 In McCullough v R [2009] NSWCCA 94 Howie said at [30] in a judgment with which the other members of the Court agreed:- "Gratuitous cruelty seems to me to suggest that the infliction of pain is an end in itself. It is needless yet intentional violence committed simply to make the victim suffer. It might be found, for example, where a robber inflicts pain upon an already compliant victim who was willing to part with the property demanded…" 65 In my opinion, it was open to the sentencing judge to find that McGlashan's act was an act of gratuitous cruelty by him. According to the fact sheet, the security guard Pignataro had been disarmed and a canister containing cash, the keys to the armoured vehicle and his revolver had been taken from him and he was not offering any resistance to the robbers. 66 It is not completely clear from his Honour's remarks whether his Honour's finding of gratuitous cruelty was a finding against McGlashan only or also a finding against the applicant. However, if it is to be regarded as a finding against the applicant as well as McGlashan, then I consider that it was open to the sentencing judge to consider that the joint enterprise to which the applicant and McGlashan were parties had continued up to and including the parties leaving the scene of the crime, as they did together in the same vehicle, the stolen Mercedes. In a joint criminal enterprise to commit a robbery in which three of the parties to the enterprise were armed with handguns and were wielding them, it was open to the sentencing judge to regard McGlashan's action with his gun as an incident in the carrying out of the joint criminal enterprise. As parties to a joint criminal enterprise to commit an offence, each offender was responsible for the acts of the others in the carrying out of the enterprise: Wright v R [2009] NSWCCA 3 at [28]. 67 I note that in the proceedings on sentence no submission was made that McGlashan's act was outside the scope of the joint criminal enterprise to which the applicant and McGlashan were parties. 68 I would reject this part of ground 4.

[43]

(d) - In finding that the injury, emotional harm, loss or damage was substantial (s 21A(2)(g)) 69 Victim impact statements by Mr Sadek, who was the victim of the first offence, and Mr Pignataro, who was one of the victims of the second offence, were admitted without objection in the proceedings on sentence. 70 In his remarks on sentence the sentencing judge referred to Mr Sadek's victim impact statement as follows:- "Mr Sadek provided a detailed account of the impact the carjacking offence had on his emotional and mental wellbeing and consequently his life and the lives of his wife and son. He stated that his home is now like a "fortress" and that he has had installed surveillance cameras and a security gate. He described the panic and horror he felt when the offenders ran at him with knives, he states: "To my horror, they have knives and all they do is stab me while I kick frantically from inside the car. I can hardly breathe from the horrific moment of fear and trying in vain to plead saying 'you've got the wrong guy'. I can't even scream for help as I'm in a state of shock and can barely breathe." Mr Sadek described the aftermath of the attack as: "I can't get out of my head the moment they opened the door and attacked me with knives. I can't describe in words how frightening that was as I was certain I was going to be stabbed to death. I am now in constant alert mode. This means at all times of the day - and the day is long - I am nervously awaiting an attack"." 71 In his remarks the sentencing judge referred to Mr Pignataro's victim impact statement as follows:- "Mr Pignataro stated that, "being involved in an armed robbery where the gun was put against my head is something I will have to live with for the rest of my life"." 72 Later in his remarks his Honour said:- "There is evidence in the victim impact statements which amounts to evidence of some substantial emotional harm over and above what might normally be expected of someone committing crimes of this nature as required by The Queen v Youkhana [2004] NSWCCA 412." 73 It was submitted by counsel for the applicant that an aggravating factor has to be proved beyond reasonable doubt and cannot be proved to the requisite standard by a victim impact statement. Counsel referred to R v Slack [2004] NSWCCA 128 at [62], where Sperling J, with whose judgment the other members of the Court generally agreed, said:- "The court is required to be satisfied of the facts in question beyond reasonable doubt. In these circumstances, substantial weight cannot be given to an account of harm in an unsworn statement, not necessarily and almost certainly not in the victim's own words, untested by cross-examination and, in the nature of things, far from being an objective and impartial account of the effect of the offence on the victim." 74 I observe in passing that in the present case the victim impact statements of Mr Sadek and Mr Pignataro, copies of which are in the appeal papers, would appear to be in their own words and not in words drafted for them by others. 75 Notwithstanding what was said in Slack, this Court has from time to time accepted that a matter, even a matter of aggravation, can, at least in some circumstances, be proved by a victim impact statement. In R v Thomas [2007] NSWCCA 269 Basten JA, with whom Latham J and Rothman J agreed, said at [37]: "In R v Slack [2004] NSWCCA 128 at [60] Sperling J noted there is further implicit recognition of the entitlement of a sentencing judge to rely upon a victim impact statement in s 28(4), dealing with the use of a victim impact statement given by a family victim "in connection with the determination of the punishment of the offender". It is unfortunate that the Act gives no greater guidance as to the appropriate use of such a statement, especially where untested, for the purposes of determining sentence. However, it will often be appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established beyond reasonable doubt and the statement is restricted to subsequent effects on the victim. There is some doubt in the present case as to what weight the sentencing judge gave either to the physical effects of the assault or its psychological sequelae." 76 In R v Wilson [2005] NSWCCA 219 Simpson J, with whose judgment the other members of the Court, so far as is relevant, agreed, referred to the victim impact statements given by the victims in that case and to Sperling J's judgment in Slack. Her Honour commented that it has not been customary for a victim who has supplied a victim impact statement to be cross-examined in the sentence proceedings. Her Honour continued at [28]:- "It may be, in an appropriate case, that a sentencing judge would decline to accept a victim impact statement, or attribute to it less weight than otherwise might be the case. This could arise where (as, arguably, happened here) the Crown sought, by way of a victim impact statement, to establish matters seriously going to the assessment of the objective gravity of the offence that were either in issue or not conceded. That really provides the answer to the issue taken here. The victim impact statements were tendered without objection. No argument was addressed to whether their contents should be attributed weight or not. Experienced counsel who appeared for the applicant on sentencing made no attempt to limit the use his Honour was to make of the quite substantial matters contained in the statements, particularly that relating to Mr Gresham." 77 Her Honour's remarks in Wilson are apposite in the present case. In the proceedings on sentence the victim impact statements were tendered and admitted without objection. No submissions were made in the proceedings on sentence that the use of the victim impact statements should be limited or that the evidentiary weight to be given to them should be limited. In these circumstances the sentencing judge could properly use the victim impact statements to establish the aggravating factor in s 21A(2)(g). 78 I would reject this part of ground 4.

[44]

Ground 5 - The sentencing judge erred in respect to subjective matters 79 There are a number of parts in this ground of appeal, which I will deal with seriatim. 80 (a) In sentencing on the basis that the applicant was in breach of bail at the times he committed the offences. 81 In one part of his remarks on sentence the sentencing judge said that "he (the applicant) was on bail for traffic matters at the time of the offences". Later in his remarks, in the course of making a finding as to whether the aggravating factor in s 21A(2)(j) was present, the sentencing judge repeated that the offender was on bail at the time of the offences. 82 The criminal history of the applicant set out in a document which was exhibit 18 in the proceedings on sentence shows that on 30 January 2008 he was charged with an offence of stating a false name and address as a driver of a motor vehicle, an offence of driving a motor vehicle never having been licensed and an offence of resisting a police officer in the execution of his duty. The applicant was granted bail for these offences and was on bail for these offences when the offences charged in counts 1 and 2 were committed on 26 February 2008 and 4 March 2008. The applicant's criminal history further shows that on 7 March 2008 he was charged with further offences of driving a motor vehicle never having been licensed and of disobeying a no right hand turn signal. He was refused bail by police but granted bail in court on 8 March 2008. The applicant's criminal history further shows that on 3 April 2008 he was charged with larceny. He was granted bail on this charge. The six charges which I have referred to were all dealt with in the Local Court on 15 September 2008. 83 Hence, at the time of committing the first two of the present offences the applicant was on bail on three charges and at the time of committing the third of the present offences the applicant was on bail on six charges. Accordingly, his Honour's statement in his remarks on sentence about the applicant being on bail at the time of committing the offences was quite correct.

[48]

(e) - In making negative findings in respect to rehabilitation 96 Findings by the sentencing judge about rehabilitation which were criticised by counsel for the applicant included:- "I saw nothing in the records of either of the offenders on which I could base a finding that there are prospects of rehabilitation. The evidence of neither parent (of the applicant) gave me any real confidence that there are neither (semble either) detailed plans for the offender's rehabilitation nor a structure for him post-release, nor any real insight into his offending behaviour and activities. The prior history of lack of effective parenting and involvement by Mr Aguirre's parents do not give any cause for optimism that they will play any effective role in his rehabilitation." 97 It was submitted that these findings did not take into account the applicant's childhood during which he had been separated for long periods from one or other of his parents and evidence given in the proceedings on sentence by each of the applicant's parents and particularly his father. 98 In his evidence the applicant's father acknowledged that in the past he had not given his son proper support but asserted that he was now committed to helping the applicant, both while he was in prison and after his release. The applicant's father said in evidence that he was regularly visiting his son in prison and speaking to him on the telephone every two to three days. It was submitted that in a situation where it was inevitable that the applicant would be in prison for a number of years, it was quite unrealistic for the sentencing judge to expect the applicant's parents to produce "detailed plans" for the applicant's rehabilitation after his release. 99 There is some force in the submissions made by counsel for the applicant. There was evidence of a change of attitude on the part of the applicant's parents. It does seem to me that it was unrealistic for the sentencing judge to expect of the applicant's parents that they should produce detailed plans for the applicant's rehabilitation after his release, which would necessarily not occur for a number of years. 100 However, the sentencing judge clearly took into account the evidence by the applicant and his parents. The sentencing judge had the advantage denied to this Court of seeing and hearing the applicant's parents give their evidence. It was open to the sentencing judge to give weight to what had in fact been the applicant's parents' conduct in the past. There was other evidence before the sentencing judge, including the pre-sentence reports and the psychologist's reports, parts of which were not favourable to the applicant's prospects of rehabilitation. According to the pre-sentence reports the applicant continued to minimise the seriousness of his offences and to demonstrate only limited insight into his abuse of drugs. Mr Taylor found that the results of psychological tests administered to the applicant showed that the applicant has a high to moderate risk of recidivism and an above average pre-disposition for substance abuse. 101 The ultimate finding which the sentencing judge clearly, if only implicitly, made, that the applicant did not have good prospects of rehabilitation, was a finding for which there was at least some evidentiary support and which cannot be set aside in this Court. 102 I would reject this part of ground 5. Ground 1 - The total sentence was unduly harsh and severe Ground 2 - The sentencing judge erred in finding that all of the offences were above the mid-range in criminality Ground 6 - The sentencing judge erred in placing a disproportionate weight on general deterrence 103 These three grounds of appeal can conveniently be dealt with together. In considering these grounds there is utility in summarising some of the features of each of the offences. 104 The offence in count 1 - the offence was committed in company. The offenders were armed with knives. The offence was committed in a carport on a driveway at the victim's home. The vehicle taken was an expensive vehicle, which was seriously damaged. The victim received some physical injuries, which were, however, minor. The victim received emotional injuries greater than would ordinarily be expected of a victim of this kind of offence. The applicant was on bail at the time of committing the offence. A standard non-parole period of five years has been set for an offence under s 154C(2). 105 The offence in count 2 - the offence was committed in company with three other offenders. Three of the offenders including the applicant were armed with handguns and wielding them. All of the offenders were masked. The offence was committed using the vehicle which had been taken in committing the offence in count 1, to which stolen number plates had been fixed, thereby indicating a substantial degree of planning. 106 The victims of the robbery were two armed security guards operating an armoured truck. The victims were disarmed. The applicant pushed his gun into the neck of one of the victims. The co-offender pulled back the hammer of his gun while continuing to point it at one of the victims. The sum of $6,120 was taken from the victims. The applicant was on bail at the time of committing the offence. 107 The offence in count 3 - the offence was committed in company with one co-offender. Each of the offenders was masked and armed with a semi-automatic weapon. The offence was committed using the vehicle which had been taken in committing the Form 1 offence, to which stolen number plates had been fixed, thereby indicating a substantial degree of planning. Further evidence of planning was the list of Mitsubishi vehicles for sale online, which was later found by police in the applicant's bedroom. 108 The victims of the offence were four armed security guards, who were disarmed. The sum of $161,000 was taken from the victims. The applicant was on bail at the time of committing the offence. In sentencing for this offence the sentencing judge took into account the Form 1 offence. 109 As to ground of appeal 2, the sentencing judge found that all of the offences were above the middle of the range of objective seriousness for offences of their kind. 110 It was open to the sentencing judge to make this finding even though, as to some of the offences, the prosecutor in the proceedings on sentence had merely submitted that the offences were "at least" in the middle of the range of objective seriousness. 111 His Honour's assessment of the level of objective seriousness of the offences can be reviewed in this Court only on the principles stated in House v The King (1936) 55 CLR 499. His Honour's assessment was well open to his Honour and there is no ground for reviewing it. 112 As to ground 6, I noted earlier in this judgment that the sentencing judge in his remarks on sentence referred to what Spigelman CJ said in Sharma about the giving of significant weight to general deterrence in sentencing for armed robberies, notwithstanding the youth of the typical offender. 113 As to ground 1, I consider that, even after taking into account the applicant's pleas of guilty and his youth, the objective seriousness of the offences was such that all of the individual sentences and the overall sentence were within a proper exercise of the sentencing judge's discretion.

At a glance

Court

Decision date

Before

Source

Judgment (52 paragraphs)

Parties

Cases Cited (12)

Cited By (9)