Alvi v R

[2014] NSWCCA 191

Court of Criminal Appeal (NSW)|2014-08-04|Before: Hoeben CJ, McCallum J, Bellew J, Callum J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2014-08-04

Before

Hoeben CJ, McCallum J, Bellew J, Callum J

Source

Original judgment source is linked above.

Judgment (23 paragraphs)

[1]

Judgment 1HOEBEN CJ at CL: I agree with Bellew J. Given the level of criminality involved in these offences and their number, Grounds of Appeal 2 and 3 were quite misconceived. 2McCALLUM J: I agree with Bellew J. 3BELLEW J: On 8 February 2012 Ammar Khalid Alvi ("the applicant") pleaded guilty in the Local Court to the following offences: (i)robbery armed with a dangerous weapon on 25 September 2011 (count 1); (ii)robbery armed with a dangerous weapon on 4 October 2011 (count 2); (iii)robbery armed with a dangerous weapon on 9 October 2011 (count 3); (iv)robbery armed with a dangerous weapon on 17 October 2011 (count 4); (v)robbery armed with a dangerous weapon on 18 October 2011 (count 5); (vi)robbery armed with a dangerous weapon on 30 October 2011 (count 6); (vii)possess unauthorised pistol on 8 November 2011 (count 7); and (viii)possess unregistered firearm (pistol) on 8 November 2011 (count 8). 4The offences in each of counts 1 to 6 were contrary to s. 97(2) of the Crimes Act 1900, the maximum penalty for which is 25 years imprisonment. The offences in counts 7 and 8 were contrary to ss. 7(1) and 36(1) respectively of the Firearms Act 1996. Each offence carries a maximum penalty of 14 years imprisonment. The offence in count 7 carries a standard non-parole period of 3 years. 5On 14 June 2013 her Honour Judge Payne imposed the following sentences: (i)in respect of each of counts 1, 2, 7 and 8, imprisonment for a fixed term of 3 years commencing on 8 November 2011 and expiring on 7 November 2014; (ii)in respect of each of counts 3 and 4, imprisonment for a fixed term of 3 years commencing on 8 May 2013 and expiring on 7 May 2016; (iii)in respect of each of counts 5 and 6, imprisonment for 4 years and 6 months commencing on 8 May 2016 and expiring on 7 November 2020 with a non-parole period of 6 months, expiring on 7 November 2016. 6The overall sentence imposed by her Honour was one of 9 years imprisonment with a non-parole period of 5 years. The applicant is eligible for release on parole on 7 November 2016. 7The applicant now seeks leave to appeal on the following grounds: (1)her Honour breached s. 45(1) of the Crimes (Sentencing Procedure) Act 1999 in failing to impose a non-parole period in respect of count 7; (2)her Honour failed to properly apply the principle of totality; (3)the sentences imposed are manifestly excessive.

[9]

The findings of the sentencing judge 44The sentencing judge found (at ROS 9) that the applicant's pleas were entered at a "very early" stage. Her Honour considered whether the utilitarian value of those pleas had been eroded by the fact that the applicant had asserted that he was acting under duress, only to later withdraw such assertion. She ultimately concluded (at ROS 9) that a reduction of 25 percent remained appropriate. However her Honour said: "...but I certainly do see the way the matter was conducted and what (the applicant) purported to do in terms of moving responsibility from himself as an impact upon considerations of contrition and remorse and this is a matter to which I will turn later in these remarks." 45Her Honour then said (at ROS 12): "As I understand it, the Crown's submission is as a result there should be a moderation of the utilitarian discount. In my view, the most appropriate way to deal with this is not in terms of utilitarian aspect (sic) but in relation to the impact on his contrition and remorse, because clearly what he was attempting to do was to move blame elsewhere. It is though the position that he now accepts responsibility and this feature, that is that he is now accepting of that responsibility, will assist him in his rehabilitation." 46Her Honour took into account (at ROS 10-11) the testimonial material. She accepted (at ROS 12) a submission by the Crown that general deterrence was a primary consideration but was not persuaded that there was a particular need for specific deterrence. 47Her Honour found (at ROS 12) that the applicant's prospects of rehabilitation were "very good" and that there was "very good potential that the applicant would, in due course, resume a law abiding life". Her Honour also took into account (at ROS 13) the fact that apart from the presence of his uncle, the applicant was in a country away from his family and that as a consequence his conditions of custody were rendered more onerous. 48Finally, her Honour concluded (at ROS 13) that a finding of special circumstances was warranted on the basis that: (i)this was the applicant's first period in full time custody; (ii)there was a requirement for partial accumulation; (iii)there was a requirement for some assistance upon release from custody; and (iv)that the applicant had very good prospects of rehabilitation. 49Her Honour made specific reference to the principle of totality (at ROS 13) before proceeding to impose the sentences I have outlined.

[12]

Submissions of the parties 52Counsel for the applicant submitted that because the offence in count 7 carried a standard non-parole period, the sentencing judge had erred in imposing a fixed term. The Crown conceded that error but submitted that it could be properly rectified by this Court in either of two ways. 53Firstly, the Crown submitted that it was open to treat the fixed term as a non-parole period and then impose an additional term. Such an approach was adopted by this Court in Leddin v R [2008] NSWCCA 242; KC v R [2009] NSWCCA 110; Leslie v R [2009] NSWCCA 283 and KAF v R [2009] NSWCCA 184. Alternatively, the Crown submitted that it was open to regard the fixed term as the total sentence, from which a non-parole period and additional term could be calculated. Such an approach was adopted by this Court in Forbes v R [2009] NSWCCA 292. 54Whilst conceding that it was open to the Court to follow either approach, the Crown submitted that the former would be more appropriate. It was submitted that this approach better reflected the apparent intention of the sentencing judge, and was also consistent with the principle that when accumulating multiple sentences the fixed term should reflect the appropriate minimum term or non-parole period: R v Thomas (1992) 64 A Crim R 269; Giles v DPP [2009] NSWCCA 308. 55Counsel for the applicant accepted either alternative was open but submitted that the second was preferable. He pointed to the applicant's plea as a factor which rendered the standard non-parole period of less significance and also relied upon the fact that the applicant's possession of the firearm count was an aggravating element of the offending in counts 1 to 6. He also pointed to the fact that it could not be established that the firearm was in working order when the offending in counts 1 to 6 took place. The essence of counsel's submission, as I understood it, was that the imposition of a total term of imprisonment of 3 years was consistent with the fact that the offending fell towards the lower end of the scale.

[20]

Submissions of the applicant 68The submissions of counsel for the applicant in support of this ground concentrated upon the guideline judgment of this Court in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346. In particular, counsel submitted that the present offending was characterised by the circumstances referred to by Spigelman CJ (at [162]; 380) as being those which might attract the application of the guideline: (i)a young offender with no or little criminal history; (ii)a weapon, like a knife, capable of killing or inflicting serious injury; (iii)a limited degree of planning; (iv)limited, if any, actual violence but a real threat thereof; (v)a vulnerable victim such as a shopkeeper or taxi driver; (vi)a small amount taken; (vii)a plea of guilty. 69In terms of these factors, counsel for the applicant pointed out that: (i)the applicant was aged 24 with no prior criminal history; (ii)it had not been established that the firearm was working at the time of the offending; and (iii)the total taken across 6 robberies was 7 packets of cigarettes and $3,495.00 in cash. 70Further, counsel drew attention to the fact that the guideline in Henry assumed a late plea of guilty attracting a discount of 10 percent, whereas her Honour had found that the applicant's pleas in the present case (having been entered in the Local Court) attracted a discount of 25 percent. This, he submitted, made the manifest excess of the sentences imposed even more apparent. 71Finally, and in addition to all of these matters, it was submitted that the sentences were unreasonable or plainly unjust having regard to: (i)the available maximum penalties; (ii)the fact that the offences contrary to the Firearms Act related to a firearm, the applicant's possession of which had aggravated the robbery offences, (iii)the applicant's favourable prospects of rehabilitation; and (iv)the absence of any need for specific deterrence. Submissions of the Crown 72The Crown submitted that the applicant's offending was distinguishable in material respects from offending which might attract the application of the Henry guideline. In particular, the Crown submitted that: (i)the applicant's offending was not limited to a single instance and could not be regarded as arising from a single criminal enterprise; (ii)the applicant's use of the weapon involved, at the very least, exposing its existence to the various victims; (iii)the total amount taken could not be properly described as "small". 73The Crown acknowledged that the applicant was relevantly young at the time of his offending. However, the Crown submitted that the nature of the offending attracted a particular need for general deterrence and that the applicant's initial assertion of duress meant that there was a total absence of remorse and contrition. Finally, the Crown submitted that her Honour's finding of special circumstances resulted in a generous reduction in the non-parole period which was reflected in the overall aggregate sentence.