ANAKI v R

Court of Criminal Appeal (NSW)|2006-11-10|Before: McClellan CJ, Hulme J, Rothman J, Clellan CJ

JUDGMENT OF: McClellan CJ at CL at 43; Hulme J at 1; Rothman J at 44

PARTIES: William Anaki Regina

COUNSEL: Crown: J Dwyer Applicant: C Nash, D Kang

IN THE COURT OF CRIMINAL APPEAL 2006/1849

McCLELLAN CJ AT CJ HULME J ROTHMAN J

FRIDAY 10 NOVEMBER 2006 William James ANAKI v Regina Judgment 1 HULME J : William Anaki seeks leave to appeal against three sentences imposed on him on 10 February last by Judge Blackmore. The offences and the sentences imposed were:- 1. On 2 May 2003 while armed with an offensive instrument, namely a sledge hammer assaulting Robert Zobouian with intent to rob - imprisonment for a non parole period of 3 years and 6 months commencing on 2 August 2011 together with a balance of term of 3 years and 6 months. 2. On 13 May 2003 being armed with an offensive weapon, namely a sledge hammer robbing Vic Baracz of a sum of money, the property of Westpac Banking Corporation - imprisonment for a non parole period of 4 years and 6 months commencing on 2 August 2005 together with a balance of term of 1 year and 6 months. 3. On 12 June 2003 attempting to rob Yashika Krishan of a sum of money, the property of the Commonwealth Bank of Australia whilst armed with an offensive weapon, namely a sledge hammer - imprisonment for a non parole period of 4 years and 6 months commencing on 2 August 2005 together with a balance of term of 1 year and 6 months. 2 The effective sentence was thus of imprisonment for a non parole period of 9 years and 6 months commencing on 2 August 2005 and concluding on 2 February 2015 together with a balance of term of 3 years and 6 months. 3 The offences arose pursuant to s97(1) of the Crimes Act and each rendered the Applicant liable to imprisonment for 20 years. 4 Taken into account in connection with the sentence imposed on the first count were four offences on a Form 1, namely:- (i) On 13 May 2003 being carried in a conveyance without the consent of the owner. (ii) On 27 May 2003 being armed (with a sledge hammer) with intent to commit an indictable offence, namely the armed robbery of the Westpac Bank at Leichhardt. (iii) On 27 May 2003 being carried in a conveyance without the consent of the owner. (iv) On 12 June 2003 aggravated (being armed with a weapon) assault with intent to take or drive a motor vehicle. 5 The circumstances of the first offence were that the Applicant and three co-offenders drove to the Commonwealth Bank at Hurstville. One offender remained in the motor vehicle. As Mr Zubian, an employee of the bank, was closing the front door, the other three offenders pushed past, Mr Anaki being armed with a sledge hammer. One offender said "this is a hold up" and bank staff activated the security screens and contacted police. 6 Mr Zubian was forced towards the security door leading to the counter area and pushed to the ground whilst two offenders attempted to force the door open using the sledge hammer. One offender called out "30 seconds is up, it's time to go" and the three offenders in the bank ran off. 7 The circumstances of the second offence included the Applicant and three offenders driving to the Westpac Bank at Five Dock in a Nissan Skyline stolen 2 hours earlier. Again one remained in the car and three entered the bank carrying sledge hammers. They were successful in smashing their way behind the counter and obtaining $45,205 from the cash drawers and departing in the stolen vehicle. 8 The third offence took a broadly similar form but on this occasion they were again unsuccessful in attempting to smash through a security door. 9 The first offence on the Form 1 involved the Nissan Skyline stolen 2 hours before the offence the subject of the second count on the indictment and used in that offence. 10 The second offence on the Form 1 was constituted by the Applicant attending the Westpac Bank in Leichhardt apparently "casing" it, later with others placing sledge hammers in a stolen vehicle and driving back to the bank, then alighting from the car wearing a balaclava and placing gloves on. He then appeared to be spotted by a security guard, and returned to the vehicle which drove away. 11 The third offence on the Form 1 involved being carried in a stolen Nissan Skyline during some of the event the subject of the second offence in the Form 1. 12 The fourth offence on the Form 1 was constituted by the offender and others blocking the movement of another occupied vehicle, one of the co-offenders approaching that vehicle, producing a knife, demanding that the driver open the door and then smashing one of the windows. One of the occupants managed to get out, the police arrived and the offenders fled. 13 The Applicant was arrested on 13 June 2003 in circumstances not revealed in the material before the sentencing judge. In fact, the agreed facts said the arrest was on 13 June 2004 14 Other matters relevant to the sentencing of the Applicant included the following. He had been released from custody on 6 April 2003 after serving 4 sentences for robbery in company imposed in August 2000. The longest of the sentences included a non-parole period of 4 years commencing on 7 April 1999 and a balance of term of 2 years. Apart from those offences, the Applicant's record which commenced on 4 December 1994 when he was 17 included 9 other, but lesser, offences of dishonesty including stealing, illegal use of a motor vehicle and possession of implements to enter a vehicle. 15 The Applicant had had little contact with his father during his growing up years and the time with his mother was limited because of the latter's need to work to provide for the family. Psychological and pre-sentence reports indicate these matters have had a significant effect on the Applicant's psychological and emotional condition. He seems to have had no behavioural problems at school but commenced significant cannabis use and occasional binge drinking at about age 13. He chose heroin from the time he was about 18 and reported that his usage progressed to the extent that he was spending in excess of $1000 a day on that habit. His custodial history indicates that during the period 2000 to 2003 he was breached in custody on numerous occasions for failing a urine test. 16 At the time of being sentenced in 2000, the judge had recommended that on release to parole the Applicant undertake drug and alcohol counselling. In fact, according to the Pre-sentence report, after release on 6 April 2003 the Applicant failed to report for interview as directed, returned a urinalysis test that was positive for opiates and amphetamines and did not inform the Parole Service of his address. 17 The Applicant and his mother gave evidence on sentence and there was, inter alia, a reference from the prison chaplain. This evidence and the absence of any failure of urine tests since August 2004 suggests that the Applicant is now seriously addressing his drug addiction. An affidavit read on the usual basis in this appeal indicates to similar effect, and that the applicant seems to be using his time well in prison and participating in courses and the like. Judge Blackmore accepted that the Applicant was genuine in expressions of a desire to reform and of remorse and regret for his actions and their impact on his victims. 18 Particularly in light of the fourth ground of appeal it is appropriate to mention that the Applicant's plea was entered on the date one or more charges against him were listed for trial, plans being that that trial would be followed by a number of associated matters (although the nature of the association, whether involving co-offenders or other offences, is not apparent other than by inference). However, because of the utilitarian benefits of the plea, Judge Blackmore allowed the Applicant a discount of 17½ percent and a further discount of 2½ percent on account of contrition. 19 His Honour specifically addressed the topic of special circumstances. He concluded that because of the length of the sentences he intended to impose, the ¾:¼ ratio contemplated by s44 of the Crimes (Sentencing Procedure) Act would provide the Applicant with a lengthy period on parole and no additional period on parole was needed. His honour declined to find special circumstances in matters advanced by the Applicant's counsel. However, taking the view that some accumulation of sentences was required, his Honour perceived that he would need to find special circumstances to achieve the ¾:¼ ratio and on that account did so.

20 His Honour went on:- "In addition, by reason of the offender's breach of parole, RSH refer to above - he has now spent a considerable additional period in continuous custody. Fairness dictates that some consideration be given to the offender for this extended period of custody, as much as anything, to give him some hope of release in the future. This is a factor that can also be reflected in a finding of special circumstances and I propose to make some additional allowance in that regard." 21 His Honour also took into account the fact that the Applicant remained bail refused in respect of the three offences (information given to this Court suggests it may have been fewer at that time) for which he was being sentenced from 13 June to 5 September 2003 when he was ordered to serve the balance of his parole associated with the earlier robbery in company offence. That parole concluded on 2 November 2005. His Honour rounded the bail refused period to one of 3 months and it was thus the earliest of the sentences his Honour imposed commenced on 2 August 2005. 22 The grounds of appeal are:- 1. The learned sentencing judge erred by significantly reducing the statutory ratio in respect to his finding of special circumstances in relation to count 1, but not varying the statutory ratio in relation to count 2 and count 3. 2. The learned sentencing judge erred by failing to give effect to his finding of special circumstances in relation to the partial accumulation of sentences. 3. The learned sentencing judge erred by failing to adequately take into account the principle of totality. 4. The learned sentencing judge erred in failing to give sufficient weight to the delay in sentencing. 5. The sentence is manifestly excessive.

Ground 1 The learned sentencing judge erred by significantly reducing the statutory ratio in respect to his finding of special circumstances in relation to count 1, but not varying the statutory ratio in relation to count 2 and count 3. 23 There is no substance in this ground. His Honour was quite entitled to take the view he did that it was only the accumulation of sentences and the fact that they were additional to the period of custody served in consequence of the revocation of parole that constituted special circumstances. These matters had no direct or necessary bearing on the sentences imposed for the offences the subject of counts 2 and 3.

Ground 2 The learned sentencing judge erred by failing to give effect to his finding of special circumstances in relation to the partial accumulation of sentences. 24 If one confines attention to the sentences his Honour imposed, this ground is not made out. An effective non-parole period of 9½ years is less than 3 times the balance of term of 3½ years. Three quarters of a total sentence of 13 years is 9 years and 3 months. Thus in fixing the non-parole and balance of the sentence on count 1 at 3½ years each his Honour did not fail to give effect to his finding of special circumstances in relation to the partial accumulation of sentences. 25 However, if one takes account also of the period the Applicant was in custody serving the balance of his earlier sentence, as the passage quoted indicates his Honour intended, the ground is made out. When that period is taken into account the Applicant's incarceration will extend from 5 September 2003, or if the period of bail refused is taken into account as I think it should be, 13 June 2003 to 2 February 2015. This is 11 years 7 month and 21 days. One third of this period is 3 years 10 months and about 17 days - some 4½ months longer than the parole period his Honour ordered.

Ground 3 26 This ground can most conveniently be dealt with in conjunction with ground 5.

Ground 4 The learned sentencing judge erred in failing to give sufficient weight to the delay in sentencing. 27 Some further reference is needed to the history of events. As has been said, the Applicant was arrested on 13 June 2003. He was due for trial on 12 July 2005 and it was only on that date he pleaded guilty.

28 The Crown, from the Bar table, but without dissent from counsel for the applicant, provided the Court with an indication of events which had occurred. In substance, they were to the effect that the applicant was not charged with all of the offences at the time of his arrest, but some, some considerable time later. 29 On 12 July on the application of Mr Anaki's counsel, Judge Blackmore ordered a pre-sentence report. Such is the demand the offender and those like him impose on the Probation Service that such reports normally take 6 weeks or so to obtain. Judge Blackmore, correctly, thought it desirable that the Applicant and a co-offender in at least one of the offences be dealt with together and stood proceedings over for mention to 18 August when the co-offender was due to appear. His Honour contemplated that it would then be set down to be heard a couple of weeks after that. No record of what happened on that date is before this Court but a transcript shows the two matters came before Judge Blackmore again on 13 October. Counsel for the Applicant sought an adjournment to some date in December in order that a psychological report could be prepared, saying that there was some issue whether the Legal Aid authorities would fund such a report. The matter was adjourned for hearing on 9 December 2005. 30 During the afternoon of that day, the Crown announced that there was objection to some documents on which he wished to rely, and he had just received a psychological or psychiatric report he had not then had a chance to read. His Honour announced there was only ¾ of an hour left in the day and both the Applicant's counsel and his Honour expressed the view it was desirable that the matter be dealt with on one occasion, not more than one. At that time, counsel for the co-offender was still engaged in another court. Later he appeared, some documents were tendered and the matter stood over to 2 February. Proceedings were heard on that day and, as has been said, sentence was imposed on 10 February 2006.

31 No material has been put before the Court to indicate comprehensively the reasons for the delay between the applicant's arrest in June 2003 and the listed trial date of 12 July 2005, though I would draw the inference from matters to which I have adverted that part of the reason was some desire to have co-offenders dealt with more or less together. This Court has indicated on numerous occasions the desirability of that course and expressed regret at the number of occasions that co-offenders have been dealt with separately in relation to sentence.

32 In these circumstances, while the period between arrest and the due date for trial was longer than is desirable, and than is normal these days, and particularly in the absence of any evidence as to particular disadvantage or impact on the applicant, I am not disposed to find that the delay is of a nature that it should be allowed to mitigate the sentence appropriate to be imposed on the applicant. 33 While almost all delay is to be regretted, the plain fact is that some delay is necessarily inherent in the criminal justice system. Judges, courts, counsel, probation authorities, cannot and do not sit around just waiting for an offender to be ready to have his case dealt with. As I have said, I do not see any delay in the above history which comes close to justifying some discount from the sentences otherwise appropriate. This ground also fails.

Grounds 3 and 5 The learned sentencing judge erred by failing to adequately take into account the principle of totality. The sentence is manifestly excessive. 34 It was not suggested on the Applicant's behalf that, considered in isolation, the individual sentences imposed on the Applicant were appellably excessive. They clearly were not. A simple comparison with R v Henry (1999) 46 NSWLR 346 demonstrates this to be so. And although there are differences between the facts here and those the subject of the guideline in that case, the presence of company, significant - I would say substantial - planning, the large amount of money liable to be stolen and the fact that the Applicant was on parole provide more than adequate reason for the sentences to be imposed on the Applicant to be higher than the 4 to 5 years contemplated in the guideline stated in R v Henry . In the case of the first count there are also the offences on the Form 1 to be borne in mind. 35 However, the question remains whether his Honour did give sufficient weight to the principle of totality. Nine years six months (non-parole) and 13 years (total) are very long periods and if the period of incarceration serving the balance of parole - 5 September 2003 to 2 August 2005 is also taken into account, extended by almost another 2 years. One must bear in mind also that the earlier periods were arrived at after a discount of 17½ percent for the utilitarian value of the Applicant's pleas. 36 I do not ignore the fact that that approximate 2 years period was pursuant to an earlier sentence and for another offence. However, as going to partly make up a continuous period of custody, it was still relevant to considerations of totality. (For present purposes I ignore the earlier period when the Applicant was refused bail. That is taken into account in the periods of 9½ and 13 years involved in Judge Blackmore's sentences.) 37 I am not impressed with the argument that a greater period of concurrency of sentences was required because the Applicant's offences were committed within a short period. They were clearly discrete and involved different victims. 38 Nevertheless, despite my view as to the proprietary of the individual sentences and the other matters to which I have referred arguing for heavier rather than lighter sentences, the conclusion at which I have arrived is that in totality the effective sentence imposed on the Applicant was excessive. To some degree, the matter is one of impression but one factor which does argue significantly in the Applicant's favour is that, while they could have been used differently, the weapons, sledge hammers, used in the offences were not, either in their inherent nature or manner of use, likely to injure the victims of the offences. In this regard, they are to be distinguished from items such as knives or loaded firearms. Having regard to the issues which were canvassed in this appeal, it is not necessary for me to consider individually the provisions of s 21A. I have taken them into account.

39 In my view, the effective sentence imposed on the Applicant should have been one of 10 years rather than 13. Although this is not the only way of achieving the result, I would effect this by commencing the sentences on the third and first counts 18 months after the commencement of the sentences on the second and third counts in lieu of the 3 years postponements Judge Blackmore adopted. I would vary the non-parole and balance of term components of the sentence on the first count to 4 years and 3 years respectively so as to reflect substantially Judge Blackmore's view that the period when the Applicant would be eligible for parole would be one-quarter of the total period of the sentences and the immediately prior period of incarceration. 40 Subject to a qualification to which I will come, the orders I propose are:-

Grant leave to appeal. 2. Allow the appeal against the sentences imposed on counts 1 and 3. 3. Confirm the sentence imposed by Judge Blackmore in respect of count 2. 4. In respect of count 3, sentence the applicant to imprisonment for a non-parole period of 4 years and 6 months commencing on 2 February 2007 and ending on 1 August 2011 together with a balance of term of 18 months commencing on 2 August 2011. 5. In respect of count 1, sentence the applicant to imprisonment for a non-parole period of 4 years commencing on 2 August 2008 and ending on 1 August 2012 together with a balance of term of 3 years commencing on 2 August 2012 and concluding on 1 August 2015. 41 The qualification to which I referred is as follows. I am proposing increasing the non parole period at the expense of the parole period in count 1 to impose a heavier sentence on the applicant than did Judge Blackmore, albeit the total term of that sentence would not increase. The applicant should have the opportunity of resisting that course, if he wishes to do so. However, I have adopted that approach on the grounds of simplicity. The same result can be achieved by altering the commencing date of that sentence. Thus, I would propose the applicant do have an opportunity of considering the particular matter to which I have adverted but should he wish to do so, I would propose that a variation in the commencement date so that the result was the same.

42 I would record, as the date upon which it appears to the Court that the Applicant will be eligible for parole, 2 August 2012.

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