Eastman v Director of Public Prosecutions

Background of the Matter

1. The offences of which the applicant was convicted arise out of a series of events on the evening of 19 August 2011 involving the applicant and three others, Ayman Manly ("Manly"), Imad Barghachoun ("Barghachoun") and Andrew Riley ("Riley"). Following a four week trial in the District Court before Murrell SC DCJ the jury found the men guilty of various offences related to the events in 2011.
2. The facts of the offences, in brief, are as follows.
3. At about 9 pm on 19 August 2011, an unmarked Pantech truck left Bankstown with a cargo including mobile telephone handsets and foreign currency. The truck's route was north along the Pacific Highway to Queensland.
4. At about 9.05pm that evening, the applicant and Barghachoun entered a service station at Silverwater intending to steal a vehicle for use in the intended robbery of the Pantech truck. They wore "hoodie" tops that partially concealed their faces; the applicant also had a black and white scarf across his face.

Counts 1 and 2:

1. The applicant approached the driver of an airport shuttle bus that had stopped to refuel. He asked the driver for the keys to the bus but the driver refused and ran to the safety of the service station building. The two offenders then approached the driver of a BMW vehicle that had also stopped for fuel and asked for the keys to that vehicle. Despite being told by one of the offenders that he had a gun, the driver did not hand over the keys to his car, and the applicant and Barghachoun ran from the service station empty handed. Manly had been waiting nearby in his dark blue Subaru WRX vehicle. The applicant, Hussein and Barghachoun got into Manly's vehicle, and Manly drove off.

Count 3:

1. Manly drove to the Vittoria Coffee Warehouse a block or so away. A security officer was seated in a silver Mazda vehicle at the Warehouse entrance, waiting to be admitted to the premises. Manly stopped his vehicle behind that of the security officer and the applicant got out. He was armed with a Browning pistol. The applicant opened the door of the Mazda and cocked the pistol. When the security officer fled the applicant got into the Mazda and drove off. Manly and Barghachoun followed in the Subaru.
2. The two vehicles were driven in convoy north to Bulahdelah, with Barghachoun joining the applicant in the stolen Mazda at some point, and the fourth of the offenders, Riley, joining the others during the drive.

Count 4:

1. During the drive north a set of number plates were stolen from a vehicle parked at a service station, and subsequently attached to the stolen Mazda to disguise it (the applicant was acquitted of this charge by the CCA.)

Counts 6, 7 and 8:

1. At about 11.30pm that night, at a location just north of Bulahdelah, the stolen Mazda overtook the Pantech truck and drove across its path, forcing it to stop. A shot was fired from the Browning pistol at the truck's windscreen (count 7), an offence that the jury found the applicant had committed, but of which the CCA subsequently acquitted him. The driver was forced from the truck's cabin at gunpoint by an armed offender, and initially he walked towards the rear of the truck. A further shot was fired, into the ground, and the driver was forced to the front of the truck.
2. The truck driver was forced at gunpoint to kneel on the ground, with the armed offender pushing the pistol into the driver's back to keep him in that position. When other motorists stopped near the truck further shots were fired into the ground (count 8), to dissuade the motorists from remaining in the area. The applicant was found guilty of discharging these shots by the jury on the basis that he had possession of and fired the gun, but he was acquitted on appeal.
3. Two of the offenders took the truck and its contents from the driver, and drove north (count 6, being the aggravated robbery).

Count 10:

1. Barghachoun and Riley drove the Pantech truck north for a short distance before turning off the Pacific Highway towards a waste depot. The driver inadvertently directed the truck into a roadside culvert where it became bogged, and the offenders were forced to abandon it. After a lengthy walk through bushland, south towards Bulahdelah, the offenders came to a sawmill, where they stole a bus belonging to the sawmill.
2. The bus was driven towards Forster. At about 3 am on 20 August 2011, police arrested Barghachoun and Riley.

Count 9:

1. At some point after the robbery of the truck, the stolen Mazda was set alight and destroyed.
2. Shortly after the commission of these offence, and during the course of the night, the applicant and Manly were stopped and spoken to by police in Bulahdelah, and their details were obtained. They were allowed to leave. The applicant was not wearing camouflage pants when observed by police, a matter critical to the success of his later conviction appeal.
3. The offences for which the various offenders were found guilty are set out below: Count Offence Statutory provision Maximum penalty Offender found guilty

4. Attempt to steal shuttle bus from Adam Naje                     Crimes Act 1900 (NSW)              5 years          Hussein Barghachoun
                                                                   s 117/154A(1)(a)                                    Manly
   

5. Attempt to steal BMW sedan from ADL Metal Pty Limited           Crimes Act 1900 (NSW)              5 years          Hussein Barghachoun
                                                                   s 117/154A(1)(a)                                    Manly
   

6. Armed robbery of Kamel Bakri of a silver Mazda sedan            Crimes Act 1900 (NSW) s 97(2)      25 years         Hussein Barghachoun
                                                                                                                       Manly
   

7. Steal number plates                                             Crimes Act 1900 (NSW) s 117        5 years          Barghachoun
                                                                                                                       Hussein
   

8. Aggravated robbery                                              Crimes Act 1900 (NSW) s 97(2)      25 years         Hussein Barghachoun
                                                                                                                       Manly
   

9. Unauthorised use of a firearm                                   Firearms Act 1996 (NSW) s 7(1)     14 years         Hussein
   

10. Cause danger with firearm                                       Crimes Act 1900 (NSW) s 93G(1)(b)  10 years         Hussein
    

11. Intentionally destroy property (Mazda sedan)                    Crimes Act 1900 (NSW) s 195(1)(b)  10 years         Hussein
                                                                                                                        Manly
    

12. Steal Mazda bus from Newell's Creek Sawmilling Co. Pty Limited Crimes Act 1900 (NSW) 5 years Barghachoun s 117/154A(1)(a)

1. Judge Murrell SC sentenced the offenders on 31 January 2013. An overall sentence of 12 years, with a non-parole period of 8 years was imposed upon the applicant. The individual sentences imposed by the primary judge are set out below. Offence Sentence Counts 1 and 2 On each count, a fixed term of 18 months imprisonment commencing on 11 October 2012 and expiring on 10 April 2014 Count 3 A non-parole period of 7 years imprisonment commencing on 11 October 2012 and expiring on 10 October 2019 with a balance of term of 1 year imprisonment commencing on 11 October 2019 and expiring on 10 October 2020. Count 4 A fixed term of 12 months imprisonment commencing on 11 October 2012 and expiring on 10 October 2013 Count 6 A non-parole period of 5 years imprisonment commencing on 11 October 2014 and expiring on 10 October 2019, with a balance of term of 4 years imprisonment, commencing on 11 October 2019 and expiring on 10 October 2023 Count 7 A fixed term of 6 years imprisonment commencing on 11 October 2013 and expiring on 10 October 2019 Count 8 A fixed term of 4 years imprisonment commencing on 11 October 2013 and expiring on 10 October 2017 Count 9 A fixed term of 3 years imprisonment commencing on 11 October 2011 to 10 October 2014

The Proceedings in the CCA

1. The applicant appealed against his conviction in respect of counts 4, 7, and 8, arguing that the convictions were unreasonable and unable to be supported by the evidence. The Court accepted that it was not open to the jury to conclude beyond reasonable doubt that the particular offences had in fact been committed by the applicant. Accordingly, the appeal against conviction was upheld and the convictions and sentences for these counts quashed.
2. The Applicant also appealed against sentence, with the appeal relevant to the remaining counts upheld in part.
3. At [113] of the principal judgment, Bellew J identified three factual matters relevant to sentence as determined by the sentencing judge: "Hussein was the offender who took the most active role in relation to the various robberies (at ROS [30]); The fact that the offending in count 3 involved (inter alia) extensive planning and was committed in company rendered it "significantly more serious" then the circumstances discussed in R v Henry (1996) 46 NSWLR 346 (at ROS [34]); The value of the damage resulting from the offending in count 9 must have been considerable, although the evidence did not establish beyond reasonable doubt the identity of the offender who actually lit the fire (at ROS [37])."
4. His Honour was not able to agree with the conclusion of the sentencing judge that the applicant's participation was "significantly" more serious than the circumstances in R v Henry (1996) 46 NSWLR 346; additionally observing that the degree of planning could not be determined.
5. Further error was found in the application of the principle of general deterrence, with the Court concluding that the applicant, a person suffering from a number of diagnosed psychiatric illnesses, including paranoid schizophrenia, was not an appropriate vehicle for general deterrence.
6. The sentences imposed with respect to counts 3 and 6 were quashed, and the applicant was resentenced. For count 3, the armed robbery of the Mazda sedan, the applicant was sentenced to a fixed term of imprisonment of 5 years, commencing on 11 October 2012 and expiring on 10 October 2017. For count 6, the aggravated robbery of the truck, the applicant was sentenced to a non-parole period of 4 years imprisonment, commencing on 11 April 2014 and expiring on 10 April 2018, with a balance of term of 2 years and 6 months, commencing on 11 April 2018 and expiring on 10 October 2020.
7. The overall sentence was reduced to 9 years imprisonment, with a non-parole period of 6 years and 6 months.

Applications Under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)

1. The applicant now asks for his case to be referred to the CCA pursuant to s 79(1)(b) of the Act, contending that there appears to be a doubt or question as to a mitigating circumstance in his case. Specifically, it is argued that the CCA did not independently re-exercise the sentencing discretion in that it failed to determine the role of the applicant in the crimes, particularly as compared to that of Barghachoun, or to make a proper assessment of the objective gravity of the offences.
2. Although the applicant contends that the CCA fell into error in the re-sentencing exercise, there was no application pursuant to rule 50C of the Criminal Appeal Rules to set aside or vary the order of the Court, and the applicant specifically disavows any intention to seek special leave to appeal to the High Court, even though that avenue is or was open. The applicant discounts the prospect of a special leave application at [60] of his written submissions, because of the "different and onerous considerations applicable to an application for special leave".
3. Consideration of an application pursuant to Part 7 of the Act is in the nature of an inquiry, with the Court performing an administrative rather than a judicial act: Application of Peter James Holland under s 78 of the Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 per Johnson J at [5] referring to Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at [48]-[50]; Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318 at 362 [124].
4. The relevant provisions from Part 7 of the Act are ss 78 and 79, which provide: "78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister." 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (3A) The Supreme Court may defer consideration of an application under section 78 if: (a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or (b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or (c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered. (3B) This section does not authorise a direction to be given, or a referral to be made to the Court of Criminal Appeal, if the Supreme Court is satisfied that the grounds for the direction or referral arise only from: (a) the fact that the convicted person was: (i) questioned under section 24 of the Crime Commission Act 2012 , or (ii) required under section 24 or 29 of that Act to produce a document or thing, or (b) either or both of the following: (i) evidence obtained directly from that questioning or requirement, (ii) any further information, evidence, document or thing obtained as a result of the questioning or the production of the document or thing. (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)."
5. The determination of an application of this nature involves the exercise of a discretionary power by a judge of the Supreme Court. There are three possible outcomes provided for by s 79, being: 1. An order may be made directing that an inquiry be conducted by a judicial officer into the conviction or (relevantly in the current matter) sentence; or 2. An order may be made referring "the whole case" to the Court of Criminal Appeal, where it would be dealt with pursuant to the Criminal Appeal Act 1912 (NSW); or 3. The Court may refuse to make either of those orders.
6. An order for an inquiry (s 79(1)(a)), or to refer the case to the CCA (s 79(1)(b)), may only be made where s 79(2) of the Act is satisfied, that is, where it "appears" that (relevantly) there is a doubt or question as to "any mitigating circumstance in the case".
7. What could constitute a mitigating circumstance has been broadly construed, and includes error which may found a doubt or question as to some feature of the matter which would have led to the imposition of a less severe sentence than that in fact imposed: Sinkovich v Attorney General for the State of New South Wales [2013] NSWCA 383; (2013) 85 NSWLR 783; (2013) 238 A Crim R 3232, at [30] - [31], per Basten JA, with whom Bathurst CJ, Beazley P, Price and Beech-Jones JJ agreed).
8. Section 79(3) of the Act provides a power for the Court to refuse to consider or otherwise deal with the application. Sections 79(3)(a) and 79(3)(b) set out some matters of relevance to any such refusal. Although the matters referred to are not intended to be exhaustive, they include circumstances where it appears to the Court that the matter was fully dealt with in the proceedings in question (s 79(3)(a)(i)); where a review has already been carried out (s 79(3)(a)(ii)); where there has been or is an available avenue of appeal but the applicant has not pursued that avenue (s 79(3)(a)(iii)); where an appeal was commenced but lapsed or was withdrawn (s 79(3)(a)(iv)); or where the Court is not satisfied that there are special facts or circumstances justifying action under the Act (s 79(3)(b)).
9. A power to refuse to deal with an application is a necessary corollary to the powers the Court may exercise pursuant to s 79(1), to prevent persons who are merely unhappy with the outcome of their trial or sentence proceedings turning to a Part 7 application as an easier or less expensive alternative to appellate action, in circumstances where there is no bar to the number of times such an application may be made.
10. Part 7 of the Act is remedial legislation; it is intended to provide a mechanism by which an individual may seek to address some material doubt as to the legitimacy of his or her conviction or sentence. As Basten JA said in Sinkovich (at [52]): "History and statutory language demonstrate that the overriding purpose of Pt 7 is, consistently with the high value placed on freedom of the individual and the unwillingness to allow that liberty to be infringed because of commission of a criminal offence unless the offence has been established beyond reasonable doubt, to provide a means to address doubts as to compliance with these principles. Historically, the need for a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence, so as to avoid an unremediable miscarriage of justice, called for statutory intervention."
11. Prior to the introduction of the statutory predecessor to Part 7 of the Act, that being in its original form s 383 of the Criminal Law Amendment Act 1883 (NSW), there was no formalised process for appeal against conviction or sentence (as that process is now understood), or for judicial or Executive review. The 1883 Act sought to formalise what had been an ad hoc and unauthorised process of judicial review, in circumstances where a doubt or question arose as to guilt or a mitigating circumstance: s 383. A more general right of appeal was not introduced in New South Wales until the passage in 1912 of the Criminal Appeal Act 1912 (NSW). See Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318 for a full history of the legislative provisions.
12. Whilst a statutory mechanism for review was retained subsequent to the introduction of the Criminal Appeal Act 1912 (NSW), now in the form of Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), those provisions are not intended to operate as a substitute for the appeals process provided by the Criminal Appeal Act 1912 (NSW). As Johnson J said in Application of Peter James Holland at [9]: "The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat [2005] NSWSC 920; (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result."
13. In the applicant's case, he has made an application for review of the sentencing decision of the CCA in circumstances where he has or had an available avenue by which he could seek leave to appeal to the High Court, but has chosen not to take that course. There is nothing in the material filed in support of the applicant's case to explain that choice, other than the reference in the applicant's written submissions to the different and "more onerous" considerations that apply to special leave applications.
14. In effect, the applicant's s 78 application raises what is contended to be an error of law, and asks a single judge of this Court to review the decision of three judges of the Court sitting as the Court of Criminal Appeal, to determine whether there appears to be a doubt or question (ultimately) about the sentence imposed.
15. That background to the application does not necessarily militate in favour of exercising the discretion conferred by s 79(1) as the applicant asks, particularly bearing in mind the requirement generally to determine such applications "responsibly and no doubt sparingly": Sinkovich at [53]. That is particularly so where the applicant has chosen not to pursue an available avenue of appeal, apparently because a s 78 application is perceived as less onerous than appellate proceedings.
16. Whilst Part 7 gives this Court the power to refer the matter to the CCA, and the applicant submits that such an order should be made, it can only be made where the Court concludes that there is a "doubt or question" as to any mitigating circumstances in the applicant's case.
17. The applicant's principal complaint is that, having found that the assessment of the objective gravity of the offences made by the sentencing judge was in error, the CCA then failed to make an assessment of its own, and failed to give effect to the conclusion that general deterrence had no role to play in the determination of sentence.
18. It is argued that the sentences ultimately imposed by the Court do not reflect either the significant diminution in the gravity of the applicant's crimes which necessarily flows from the conclusions of the Court, or the absence of any role for general deterrence in the sentence imposed. Because of those asserted errors it is contended that the CCA failed to independently exercise the sentencing discretion, and thus there appears to be a doubt or question as to a mitigating circumstance, leading to the possibility that a lesser sentence than that imposed is warranted.
19. The Attorney General, who has filed written submissions which may be considered on the application pursuant to s 79(4) of the Act, submits that none of the matters raised by the applicant constitute errors in the exercise of the CCA's sentencing discretion such that this Court would be satisfied that there appears to be a doubt or question as to a mitigating circumstance in the applicant's case. It is submitted that there is no possibility that the CCA imposed a more severe sentence than it should properly have imposed.
20. Having carefully considered the judgment of the CCA, and the submissions of the applicant and the Attorney, I am unpersuaded that there are matters in the judgment which suggest or demonstrate that the exercise of the sentencing discretion miscarried, giving rise to the appearance of a doubt or question.
21. I do not agree that there was a failure in the principal judgment to assess the gravity of the applicant's crimes. Whilst the CCA did not categorise the objective gravity of the applicant's crimes by reference to a scale or some mathematical analogy, that is not required: Zreika v R [2012] NSWCCA 44, at [45] to [47] per Johnson J, with whom McClellan CJ at CL agreed: PK v Regina [2012] NSWCCA 263.
22. What is required when a sentence is determined according to a process of instinctive synthesis is to identify all of the factors that are relevant to sentence and then make a value judgment as to the appropriate sentence in all the circumstances of the case: Zreika v R; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 377-378 [51]; Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [26].
23. In the principal judgment the CCA considered those aspects of the matter which went to the objective gravity of the offence, including the number of individuals involved and the actions of each participant in the enterprise, the fact that there was a degree of planning, the use of a firearm (albeit in circumstances where the applicant could not be held personally responsible for the possession and discharge of the weapon), and so on. Although some aspects of the sentencing decision at first instance were concluded to be erroneous, others were not, and those aspects of the matter were referred to by the CCA. Additionally, Bellew J concluded at [119] that the level of criminality for count 3 was "similar in many respects" to that in R v Henry (1996) 46 NSWLR 346, a clear indication of the assessment of the CCA of the gravity of that offence.
24. Reading the judgment as a whole, and having regard to the sentences imposed on Barghachoun, I am not left with a sense of doubt or any question as to this aspect of the sentence that was imposed upon the applicant.
25. Nor is there any basis upon which to question the way in which the CCA approached the issue of general deterrence. The CCA's conclusion that the applicant was an inappropriate vehicle for general deterrence was clearly enunciated and, having regard to the sentence ultimately imposed, must have been given full effect in my view. The sentences imposed by the CCA were, having regard to the very serious nature of the applicant's crimes, committed in the context of a joint criminal enterprise, relatively modest. They do not of themselves, or by comparison with the sentences imposed upon the co-offender, suggest that the CCA overlooked its own conclusion that general deterrence had no real role to play in the sentencing exercise.
26. Having considered the matter I am not satisfied that the "gateway" provisions of s 79(2) of the Act have been met. Accordingly, I decline to make an order pursuant to s 79(1) of the Act.

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