AZZI v REGINA

Court of Criminal Appeal (NSW)|2008-05-21|Before: James J, Hoeben J, Hall J

JUDGMENT OF: James J at 1; Hoeben J at 2; Hall J at 3

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - SENTENCING - appeal against sentence - offender convicted of aggravated assault with intent to rob - alleged sentencing judge erred in precluding consideration of an available sentence - sentencing judge had expressed a provisional sentence then revised the sentence upwards - appeal dismissed

Kutchera v Regina [2007] NSWCCA 121 CASES CITED : Regina v Henry (1999) 46 NSWLR 346 Regina v Mason [2000] NSWCCA 207 Regina v Tuncbilek [2004] NSWCCA 139

PARTIES: John AZZI v REGINA

COUNSEL: Crown: N Adams App: A Francis

SOLICITORS: Crown: S Kavanagh App: S O'Connor

IN THE COURT OF CRIMINAL APPEAL 2007/3043

JAMES J HOEBEN J HALL J

TUESDAY 22 JULY 2008 JOHN AZZI v REGINA Judgment

1 JAMES J: I agree with Hall J 2 HOEBEN J: I agree with Hall J and the order he proposes. 3 HALL J: The applicant pleaded guilty on 30 April 2007 at Parramatta District Court to one count of aggravated assault with intent to rob contrary to s.95(2)(a) of the Crimes Act 1900. The circumstance of aggravation was the use of corporal violence upon the victim. The offence occurred on 17 May 2006 at 9.20 pm. 4 On 15 June 2007, the applicant was sentenced to a non-parole period of 18 months to commence on 21 July 2007 and to expire on 20 January 2009 with a balance of term of 18 months to expire on 20 July 2010. 5 The sentencing judge, pursuant to s.32 of the Crimes (Sentencing Procedure) Act 1999 took into account an offence of failing to disclose the identity of other persons in his vehicle contrary to s.16(2) of the Law Enforcement (Power and Responsibilities) Act 2002. 6 On 12 February 2008, the applicant, by notice dated 12 February 2008, sought leave to appeal against the sentence imposed on him. The only ground of appeal proposed to be relied upon was in the following terms:- "The sentencing judge erred in concluding that a sentence of two years' imprisonment with a non-parole period of 12 months was manifestly inadequate and, in doing so, improperly constrained the exercise of his sentencing discretion."

The remarks on sentence 7 The sentencing judge noted that the offence carried a maximum penalty of 20 years' imprisonment. A statement of agreed facts (Exhibit A3) was tendered at the sentencing hearing (paragraphs 2, 9, 10, 11, 12, 14 and 26, however, were not agreed). 8 A hearing was conducted on the evidence to resolve the matters in dispute. The applicant gave evidence, as did the victim and his partner. In its written submissions, the Crown summarised the facts set out in the remarks on sentence and there was no issue as to its accuracy. I, accordingly, reproduce the summary set out in those submissions:- "6. In May 2006, the victim and his partner Debra Wickham advertised eight Staffordshire terrier puppies for sale in the Trading Post at $600 per dog. 7. On 17 May 2006, at approximately 9.20 pm, the victim and Ms Wickham received a phone call from the applicant who stated that he had earlier contacted the victim's brother regarding the purchase of a puppy. The applicant was unknown to the victim and Ms Wickham. During the telephone call, arrangements were made to meet at the Shell Service Station located at Raw Square, Strathfield a short time later. At approximately 9.30 pm, the victim and Ms Wickham attended the Shell Service Station. 8. The applicant arrived in a car a short time later, in the company of another male and female. The female remained in the car. The other male, who remains unknown, approached the victim and Ms Wickham. The applicant asked to see the puppies. Mr Gerakis showed the applicant and the other male two puppies. The applicant stated: 'I'll take the male one. He has bigger paws'. The applicant asked how much the dogs cost. He was advised the price by the victim. A dispute arose over whether the price was negotiable. 9. During the dispute, the applicant placed his right hand into a fist and punched the victim directly in the mouth area. The punch was of sufficient force to split Mr Gerakis' lip and he felt immediate pain (see photos exhibit A4). 10. A knife was visible in the front jacket pocket of the applicant at all times throughout the confrontation. The victim fought with the applicant and the applicant retreated to the waiting car with the other male and they left the scene. 11. Police arrived shortly afterwards. Police were later able to identify the applicant through the use of telephone records. On 11 July 2006, police conducted a photographic identification process with the victim and the victim identified the applicant, out of an array of 20 photographs, as being the man who assaulted him on 17 May 2006. 12. At 4.00 pm on 21 September 2006, police attended the home address of the applicant and arrested him. The applicant was conveyed to Hurstville Police Station where he participated in an electronically recorded interview with police. 13. The applicant initially denied contacting anyone through the Trading Post to purchase a puppy. He denied attending Shell Service Station at Strathfield. He also indicated that someone could have used his telephone when questioned in relation to the telephone records. 14. The applicant then made a number of admissions to the police. The applicant admitted that he had punched the victim after a dispute about the price of the puppy. He agreed that the injury caused to Mr Gerakis was as a result of the punch he landed on him. The applicant refused to supply police with the identity of the other two people in his car (this was the offence taken into account on the Form 1). 15. The sentencing judge found that the applicant only formed the intent to rob the victim when the altercation commenced (ROS 17.9). His Honour also found that the presence of the knife caused him to infer that there was some limited planning but that the offence was largely impulsive (ROS 18.2)." 9 The applicant's date of birth is 5 August 1987. He was, accordingly, 18 years of age at the date of the offence and 19 years of age at the date of the sentencing hearing. 10 The remarks on sentence record the following findings:- "I therefore do not accept that the offender motioned to remove a wallet from the victim, that the offender grabbed the victim by the back of the head and pulled him forward, that he produced a silver bladed double edged knife from his front jumper pocket and attempted to stab the victim by thrusting the knife forward, that the blade of the knife was caught in the victim's jumper and did not penetrate the victim's torso ara [sic] , that the blade was about 20 centimetres in length, that the offender said to Mr Gerakis, 'If you know what's good for you, let go of the pup' and the offender then returned the knife to his front jacket pocket. I accept only what Mr Gerakis said in his original statement, as he conceded in cross-examination, which was that a knife, the length of which he did not specify, was visible in the front jacket pocket of the offender at all times during their confrontation. That version of events, as opposed to that advanced by the Crown, which it must prove beyond reasonable doubt, makes a considerable difference to the approach I have taken to sentencing in this case, needless to say, in that it, together with the other undisputed facts as set out above, places this offence objectively below the mid-range of offences of its type in my view, though not at or near the bottom of that range. Exhibit A, the Crown bundle, also contains two photographs of what looks like a fat lip sustained by Mr Gerakis in the assault, and they amply establish that he was the victim of a reasonably hard punch by the offender in that area, and I have taken that fact into account on sentencing." 11 The sentencing judge noted that the applicant's criminal history (recorded in Exhibit A) revealed that an offence of stalk/intimidate with intent to cause fear of mental or physical harm committed on 28 August 2005 was taken into account on a Form 1 on sentencing on 28 March 2007 in relation to other offences. On that date, the applicant was sentenced at the Parramatta District Court for an offence committed on 23 December 2005 of being an accessory after the fact to maliciously wound a person. He had earlier been charged with an offence of being an accessory after the fact to malicious wounding with intent to inflict grievous bodily harm. The offence was not proceeded with, the Crown accepting the alternative plea of being an accessory after the fact to maliciously wound a person. 12 The applicant was sentenced for the abovementioned offences to a term of imprisonment of 18 months with a non-parole period of 10 months commencing on 22 September 2006 and expiring on 21 July 2007. The applicant was released subject to supervision, to undertake treatment and/or counselling in relation to drugs and alcohol and anger management. 13 The applicant's history in a report by Mr Terry Smith, clinical psychologist (Exhibit 1 on the sentencing hearing), recorded that six months after receiving the suspended sentence, his cocaine dependency markedly increased. 14 The sentencing judge also noted that the applicant had been convicted in Sutherland Local Court on 16 February 2007 for offences of possession of a prohibited drug resulting in a term of imprisonment of three months, disposal of property being the proceeds of theft, being a serious indictable offence (imprisonment for one month), supply of a prohibited drug (two counts) resulting in a term of imprisonment for two concurrent terms of imprisonment of 16 months with a non-parole period of 10 months. The non-parole period was to expire on 21 July 2007. The sentencing judge observed:- "There is no doubt that the offender's prior criminal antecedents entitle him to no particular degree of leniency, to say the least, although his age does to a degree, because the authorities establish that questions of rehabilitation enter into sentencing young offenders to a greater degree than would normally be the case." 15 The sentencing judge had regard to a pre-sentence report dated 14 June 2007 (Exhibit C) and to the report of Mr Smith dated 11 June 2007. He noted that there was no suggestion in the latter report of any psychological condition contributing to the applicant's offending such as to attract leniency. 16 The applicant pleaded guilty on the first day the proceedings were listed for trial. He had earlier indicated that he would enter a plea of guilty if reference to any knife was removed from the statement of facts. 17 The applicant was given a 20% reduction for his plea of guilty, the starting point for the sentence imposed being three years and nine months. 18 The applicant was on bail for the offence of intimidation when he committed the offence the subject of this appeal.

Applicant's submissions 19 Ms Francis of counsel, who appeared on behalf of the applicant, in her written submissions recorded the following:- "1.3 A disputed facts hearing was resolved largely in favour of the applicant inasmuch as the sentencing judge was not satisfied that the applicant produced a knife during the altercation. His Honour commented that he was unimpressed with the victim's demeanour. 1.4 The sentencing judge did not find that the offence was premeditated and he was satisfied it was an impulsive act in the context of an argument. 1.5 His Honour stated during the proceedings on sentence that he felt that a head sentence of two years with a non-parole period of 12 months was appropriate (T 15/06/07, p.21, line 44 to 46, and later p.22, line 51 to 57). In response to this indication, the Crown suggested that his Honour would fall into appellable error if he imposed such a sentence (T 15/06/07, p.26, line 13). 1.6 His Honour acceded to this submission, which was made without reference to any relevant authority, and he stated in the remarks on sentence (ROS) at p.19.3:- 'After reflection during the morning adjournment and on consideration of what was said in Mason and Tuncbilek, the two authorities given to me by the Crown, and of the figures appearing in the statistics, the latter to a lesser degree, I considered that I would fall into appealable error by imposing such a sentence, as indeed was the Crown's submissions before the morning adjournment. After anxious reconsideration, and some regret at having made an indication in relation to sentence which I later formed the view was inadequate, I have decided that a total sentence of three years, divided into a non-parole period of 18 months and a parole period of 18 months is appropriate, dating from the date of expiry of the current non-parole periods, namely 21 July 2007, as the Crown submits it should.' 1.7 The reference in the above passage to two cases was a reference to R v Daniel Mason [2000] NSWCCA 207 and R v Tuncbilek [2004] NSWCCA 139. Neither of these cases supported the proposition that a sentence of two years comprising a non-parole period of 12 months was manifestly inadequate in the unusual circumstances of this case. It has been repeatedly observed by this Court that reference to statistics, which say nothing about the facts of a case, does not establish that a particular sentence is outside of a legitimate exercise of discretion. In acceding to the mere assertion of the Crown that two years with a non-parole of 12 months was legally erroneous, his Honour has fallen into error. 1.8 His Honour allowed a 20% discount for the plea of guilty, the starting point thereby being three years and nine months imprisonment. The applicant asked that the sentencing judge take into account one offence on a form one of Passenger Not disclose Driver/Passenger when being sentenced for the principal offence. Ground One. The sentencing judge erred in concluding that a sentence of two years imprisonment with a non-parole period of 12 months was manifestly inadequate and in so doing improperly constrained the exercise of his sentencing discretion." 20 Ms Francis emphasised the applicant's age at the date of the offence and that his past criminal history was "recent" and relevantly contained only two entries before the commission of the subject offence - accessory after the fact to malicious wounding and the offence of intimidation taken into account on a Form 1. She acknowledged there were offences after the subject offence but noted that they were of a different nature. 21 Ms Francis also referred to the following:-

(1) That the sentence imposed was cumulative to the 10 month sentence being served at the time of the sentencing hearing.

(2) The applicant's expressed remorse both in this evidence and to the psychologist. 22 Reference was also made in the submissions on behalf of the applicant to the applicant having left school at Year 10, the completion by him of a panel beating course, a history of mild hyperactivity disorder, the bad influence of others leading to a short period of cocaine use and the lack of assistance to help him in drug rehabilitation before committing the subject offence. 23 Mr Francis acknowledged that an aggravating feature of the offence was that the subject offence was committed whilst the applicant was on bail, but reliance was placed upon the impulsive nature of the offence as found by the sentencing judge. Reference was made to the following observations in the remarks on sentence:- "This brings me to the appropriate length of the offender's sentence. I accept, as the Crown submitted, that there are aggravating features here consisting of the present offence occurring at a time when the offender was on conditional liberty, he having been on bail in respect of the matters for which he was subsequently sentenced as set out in his criminal antecedents, that there was a very limited degree of planning involved in the present offence, and that there is a record of prior offences relevant only to the issue of individual deterrence rather than as an aggravating feature of the offence itself, in accordance with authority. That is to say prior offending is only relevant on the issue of deterrence of this particular offender, and I accept that it is so here to a small degree, in view of the relatively limited nature of the prior record, although I note it consists of offences similar to the present one." 24 It was contended for the applicant that the trial judge had been in error in stating that a sentence of two years was "effectively outside of an available range or in other words manifestly inadequate": see paragraph 1.6 of the appellant's submissions set out in paragraph [19] of this judgment. It was submitted that this statement amounted to an erroneous constraint upon his Honour's discretion. A sentence of two years, it was contended, was not outside the reasonable range. It was also contended, "This is particularly so when considering the application of the principle [of] totality in respect of which his Honour was silent" (paragraph 4.1 of the applicant's written submissions). 25 Ms Francis placed reliance upon what was said to be an analogous error referred to by Rothman J (with whom James and Harrison JJ agreed) in relation to Kutchera v Regina [2007] NSWCCA 121 at [42] to [44]:- "42. To describe, as did his Honour, the suspension of the custodial sentence imposed as being 'an erroneous exercise of my sentencing discretion' and as 'outside a proper exercise of sentencing discretion' is to treat a suspended sentence in his case as outside the range available. As I have made clear, it was not outside the range, as the Crown conceded. 43. To preclude consideration of an available outcome is an error of law. To treat a suspended sentence as an unavailable result, when it is within range, is an error capable of being remedied on appeal. His Honour has erred in treating the suspension of the sentence as out of range. 44. The above should not be taken as a counsel of perfection. This Court is not unmindful of the pressures on District Court judges and it is not appropriate to comb through remarks on sentence or judgments, especially those delivered ex tempore, looking for infelicitous expressions. However, there is a fundamental difference of approach between a determination, in the circumstances of a particular case, not to suspend even though it is within range and the determination of a sentence on the basis that, after 'carefully considering' submissions, a suspended sentence would be 'outside a proper exercise' or an 'erroneous exercise' of the discretion available. I find error and I am required to deal with the provisions of s.6(3) of the Criminal Appeal Act 1912 (NSW)."

The Crown's submissions 26 The Crown succinctly set out its submissions in relation to the proposed ground of appeal in paragraphs 21 to 27, which I reproduce below:- "21. During the submissions by the applicant's then counsel at the proceedings on sentence, the sentencing judge indicated that he was 'thinking of a non-parole period of a year dated from today's date' and 'a parole period … of a year' (POS, t.p.21, lines 45 - 51). The solicitor appearing on behalf of the Crown responded by submitted that such a sentence would be 'appealable error, that's too low' (POS, t.p.21, lines 53 - 54). The sentencing judge was later assisted by relevant case law, Judicial Commission statistics and oral submissions on the question of objective seriousness (POS 24. line 48 - POS 28, line 45). 22. Although the offence of aggravated assault with intent to rob contrary to s.95(2)(a) of the Crimes Act 1900 is not expressly referred to in the guideline decision in Regina v Henry (1999) 46 NSWLR 34 [sic] , the maximum penalty of 20 years imprisonment is the same and it has been held that the decision in Henry is still of assistance with dealing with robbery offences which carry the same maximum penalty of 20 years: R v Murchie (1999) 108 A Crim R 482 at [20]; R v Stanley [2003] NSWCCA 233 at [13]-[14]. The sentencing judge was referred to the decision of R v Tuncbilek [2004] NSWCCA 139 at [19] and [20] in this regard (see ROS 16.2). 23. The sentencing judge's attention was also drawn to the decision in Regina v Daniel Mason [2000] NSWCCA 207, dealing with the relevant sentencing principles for this offence generally (ROS 16.2), and also to the Judicial Commission statistics for this offence (ROS 12.9 - 13.3). 24. Having had the opportunity to consider the matter further the sentencing judge apologized to the applicant for giving an early indication as to the possible sentence and informed him that he was of the view that that early indication was 'manifestly inadequate' (POS, t.p.27, lines 3 - 11). 25. In forming the view that the appropriate sentence was a non-parole period of 18 months and a balance of term of 18 months the sentencing judge had regard to the relevant extrinsic aids to assist him in the exercise of sentencing the applicant. To do so was an appropriate exercise of his sentence discretion. As the Court observed in R v Way (2004) NSWLR 168 at [122] in the context of using standard non-parole periods as a reference point:- 'In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevant as a reference point to be compared with the sentence which is provisionally reached after an assessment ahs been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the applicant entered a plea of guilty." 26. Consistent with this approach the sentencing judge provisionally reached a sentence and then having had regard to extrinsic aids such as the relevant case law, guideline judgment in Henry and the Judicial Commission statistics, formed a view that a higher sentence should be imposed. 27. It is not contended on behalf of the applicant that the sentence imposed by the sentencing judge is manifestly excessive. Rather, it is contended that his Honour erred in not imposing the sentence he had provisionally indicated he would imposed before he had regard to the extrinsic aids referred to above." 27 The Crown, in oral submissions, did not dispute the point that the offence, involving aggravated assault with intent to rob under s.95, was in the low range of offences but submitted it was not at the bottom of the range. 28 The Crown, in this respect, referred to the fact that the offence was aggravated by the fact that the applicant was on conditional liberty at the time of the offence and that the sentencing judge was justified in taking the view that his prior criminal antecedents entitled him to no particular degree of leniency. It was noted that the sentencing judge determined that there had been a limited amount of planning involved in the offence.

Consideration 29 The submissions on sentence before the sentencing judge commenced on 15 June 2007. At an early point, the Crown provided him with a copy of the judgment of this Court in Regina v Tuncbilek [2004] NSWCCA 139. Reference was made to this Court's observations in that case in paragraph [20] to the fact that the Henry guideline (Regina v Henry (1999) 46 NSWLR 346) may provide a reference point for judges sentencing robbery offenders who fall outside the guideline. 30 Later and during submissions (at t.21), the sentencing judge said that he was thinking of a non-parole period of 12 months dating from 15 June 2007 following upon which the Crown Prosecutor observed that such a sentence would be appellable error and would be "too low" and referred again to the "guideline judgment", the objective seriousness and to the subjective factors. 31 The sentencing judge then continued to receive submissions, principally on behalf of the applicant with the Crown later making some further brief submissions on the issue of the knife and the Henry guideline "which is a four or five year head sentence (t.25). 32 The sentencing judge then responded by saying a period of that length was not appropriate for an offence "that falls short of actual robbery" (t.25). 33 The Crown referred to the sentencing statistics which indicated 52% of offenders received a sentence of between 38 and 48 months and repeated what had been said earlier, namely, that a sentence on the basis of a non-parole period of 12 months with a 12 months parole period "would be appellable error" (t.26). The Crown, again, referred to the sentencing statistics and restated the matters that were said to put the applicant "in a category of greater seriousness than most offenders who are his age …" (t.26). 34 There was then a short adjournment. When the hearing resumed, the sentencing judge made the statement set out in paragraph 1.6 of the written submissions for the applicant (see paragraph [19] of this judgment) indicating that he had revised his assessment. Importantly, he then referred to the sentencing statistics and to the judgment in Tuncbilek (supra) and to the judgment of the Court in Regina Mason [2000] NSWCCA 207 indicating that those judgments were of significance to the determination of the sentence - more so than the statistics which he said only provided "a very broad indication as to the parameters of sentencing" but nonetheless indicated that they were of some assistance. 35 I do not consider that the passage in the remarks on sentence criticised in the applicant's written submissions reveals error as argued for the applicant. A close examination of the transcript and the remarks on sentence establishes the following:-

(1) When the sentencing judge made the comment "… I'm thinking of a non-parole period of a year dated from today's date …" , he had not reached a firm conclusion.

(2) At the time of that comment, he had not given consideration, as the Crown submitted, to either the sentencing statistics or the full import of the judgments in Mason (supra) or Tuncbilek (supra).

(3) It was following upon consideration of those matters that the sentencing judge considered he would fall into error if he imposed a sentence as he earlier had been "thinking" of doing. That was no more than saying that such a sentence would, following consideration, be wrong in the sense that it would not be an appropriate or sufficient reflection of the seriousness of the offence. 36 In the circumstances, it was open to the sentencing judge to revise his earlier evaluation or assessment which was expressed in provisional or tentative terms. I do not consider that his Honour went as far as was argued, namely, "erroneously limiting the proper exercise of the sentencing discretion" (t.1). 37 It is not correct to say that the Crown Prosecutor's statement to the effect that a non-parole period of 12 months would give rise to appellable error was a statement made without reference to authority. The guideline judgment in Henry (supra) was a relevant reference point as stated in Tuncbilek (supra) at [20]. The Crown Prosecutor was entitled to rely upon those authorities in making the submission. 38 I do not see, in the particular circumstances, that the sentencing judge's observation that a sentence involving a non-parole period of 12 months with a 12 months parole period would involve appellable error gives rise to the same point made in Kutchera (supra) at 42. 39 The remarks on sentence as to what his Honour ultimately considered was the appropriate sentence was the culmination of a process of assessment. It was not, in my opinion, driven by some notion or concept that two years was not a sentencing option that was available. The sentencing judge's observation that he would fall into appellable error by imposing the sentence he had earlier mentioned on a provisional basis occurred, it is true, shortly after the Crown submission to that effect. However, the sentence ultimately determined was clearly the product of a careful reconsideration of his earlier indication in light of relevant case law and sentencing statistics that had been brought to his attention. The sentence could not, in those circumstances, be considered to have been affected by some self-imposed constraint on the sentencing discretion as was submitted for the applicant. 40 I, accordingly, am of the opinion that there is no substance to the proposed ground of appeal. I consider that the sentence imposed appropriately took into account the seriousness of the offence and the relevant mitigating factors. 41 Accordingly, the orders I propose are as follows:-

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