EL-ARJA v REGINA

Court of Criminal Appeal (NSW)|2008-11-07|Before: Hall J, Harrison J, Clellan CJ

JUDGMENT OF: McClellan CJatCL at 1; Hall J at 2; Harrison J at 57

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - grounds for interference - whether sentence manifestly excessive - whether trial judge gave undue weight to the offence - consideration of sentencing guidelines - consideration of relevant principles - deterrence - seriousness of offence - where finding of special circumstances adequately taken into account in sentence - where appeal dismissed

Attorney-General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146 CASES CITED : Regina v DBN [2005] NSWCCA 435 Regina v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 Regina v Simpson [2001] NSWCCA 534

PARTIES: Belall EL-ARJA v REGINA

COUNSEL: Crown: P Calvert App: P Lange

SOLICITORS: Crown: S Kavanagh App: Adam Houda

IN THE COURT OF CRIMINAL APPEAL No 2007/5640

McCLELLAN CJ at CL HALL J HARRISON J

THURSDAY 12 FEBRUARY 2009 BELALL EL-ARJA v REGINA Judgment

1 McCLELLAN CJ at CL: I agree with Hall J. 2 HALL J: The applicant by notice dated 5 June 2008, seeks the leave of this Court to appeal against sentences imposed on him by the District Court of New South Wales on 30 November 2007. 3 He pleaded guilty in the Local Court at Burwood on 15 August 2007 to two counts of robbery whilst armed with an offensive weapon, contrary to s.97(1) of the Crimes Act 1900. 4 In the application for leave to appeal, the following two grounds were relied upon:- (1) The sentence imposed upon the applicant in respect of the second charge was manifestly excessive, in circumstances where his Honour gave too much weight to the offence to be taken into consideration. (2) The sentence insufficiently reflected his Honour's finding of special circumstances.

The offences 5 The charges to which the applicant pleaded guilty were as follows:- Count 1: Robbery whilst armed - 19 February 2007 Section 97(1) Crimes Act 1900 Maximum penalty: 20 years' imprisonment Count 2: Robbery whilst armed - 19 February 2007 Section 97(1) Crimes Act 1900 Maximum penalty: 20 years' imprisonment

Sentences imposed 6 The individual sentences imposed were as follows:- Count 1: A fixed term of two years' imprisonment commencing on 15 March 2007 and expiring on 14 March 2009. [The applicant's date of arrest was 15 March 2007]. Count 2: Taking into account Form 1 matter A term of five years' imprisonment with a non-parole period of three years commencing on 15 March 2008 and expiring on 14 March 2011. 7 Accordingly, the sentence imposed with respect to Count 2 was accumulated one year after the commencement of the sentence imposed with respect to Count 1. 8 A charge of robbery in company (on 17 February 2007) was taken into account on a Form 1 in respect of the sentence imposed for Count 2. 9 The total effective sentence, therefore, was a period of six years imprisonment and an effective non-parole period of four years imprisonment commencing on the date of the applicant's arrest, 15 March 2007.

Facts 10 The facts of the offences in chronological order as summarised in the Crown's written submissions were as follows:-

(1) Robbery in company, 17 February 2007: Form 1 matter "3. On Saturday 17 February 2007 at about 3:15 pm Ankesh Dhingra (aged 19) was on a train traveling [sic] from Cabramatta to the city via Bankstown when the applicant approached the victim who continued to talk on his mobile phone. Moments later the applicant moved across the aisle and sat on the other side of the train. His juvenile co-offender AEH then sat directly opposite the victim. The victim finished his call and was holding his mobile phone. AEH then said 'Do you want it the easy way or the hand way? Give my your phone and wallet'. AEH snatched the phone from the victim's hand, and the applicant and AEH left the train. 4. The victim got off the train at Campsie station, where he contacted the police and reported the incident. 5. The victim's mobile phone service was used shortly after the offence to call three different numbers. The three numbers were all found in the applicant's phone book."

(2) Robbery whilst armed, 19 February 2007: Count 1 11 The facts of this offence are as follows:- "6. On 19 February 2007 at 12:20pm Akhtar Hussain (aged 37) caught a train from Wiley Park to Strathfield on his way to work. He sat in the upstairs section of the carriage, where he was the only passenger. 7. CCTV footage from Wiley Park station shows the applicant and AEH loitering at the station with a third unidentified male before boarding the victim's train. The applicant was wearing a red sleeveless t-shirt with 'Vikings' written across the chest. 8. As the train left Wiley Park station the applicant and his juvenile co-offender AEH entered the victim's carriage from the carriage in front. The applicant sat directly opposite the victim and AEH sat directly behind the victim. 9. AEH leaned close to the victim and held a knife to the back of the victim's neck. AEH said, 'You want the easy way or the hard way? Give us the money'. The victim said, 'I only have twenty dollars'. AEH said, 'if you will not give me the money I will slice you. Give it, give it'. 10. While this was happening the applicant was looking at the victim and looking around the carriage. The applicant also said, 'Give it, give it'. 11. The victim removed $85 in cash from the pocket of his pants. AEH grabbed the money from the victim's hand and then held the knife in front of the victim's face. The victim described the knife as a 20 centimeter [sic] folding knife with a sliver blade and black handle. 12. At this point the train stopped at Punchbowl station. The applicant and AEH ran out of the train and left the platform. They were recorded by CCTV footage at Punchbowl station. 13. The victim immediately reported the incident to a City Rail employee by telephone."

(3) Robbery whilst armed, 19 February 2007: Count 2 12 The facts of this offence are as follows:- "14. On 19 February 2007 at about 1:05pm Mr Ryan Bernardo (aged 25) boarded a city-bound train at Bankstown station. He sat in the centre of a carriage containing five or six other people. He had with him a bag containing a tripod and a second bag containing a camera and some lenses. He was playing with one of the lenses. 15. At Punchbowl station the applicant entered the victim's carriage with his co-offender Safi Merhi. CTV footage from Punchbowl station shows the applicant and Merhi boarding the train empty-handed. 16. Merhi sat opposite the victim, put his arm on the chair in a relaxed fashion and looked at what the victim was doing. The applicant sat next to the victim, with the victim's bags on the seat between them. 17. Merhi said, 'What are you doing?' The victim relied, 'I am just playing around with the lens'. Merhi asked, 'Where are you going?' The victim said, 'I am going to work, in the city'. 18. During this conversation the applicant took hold of the victim's tripod bag. The applicant asked 'What's this for?' The victim said, It's a tripod bag'. The applicant asked, 'For videos or photos?' The victim replied, 'Photos'. 19. Merhi then said, 'Do you want to do this the easy way or the hard way?' Merhi motioned to the applicant. The victim said that the applicant was holding a knife with a 10cm blade in his right hand and was pointing the knife at him. The applicant held the knife low, about 40cm from the tripod bag. 20. Merhi said, 'Give me your money'. The victim said, 'I don't have any'. Merhi said 'Give me your wallet'. The victim handed his wallet to Merhi, which contained the victim's Visa card and driver's license. 21. Merhi then said, 'Give me your phone'. The victim said, 'I am not sure where it is'. The victim then grabbed the bag containing his camera, jumped up onto the seat, climbed over the back of the seat and fled into the next carriage, where he attempted to attract the attention of the train guard. The applicant and Merhi did not follow the victim. 22. The applicant and Merhi left the train at Wiley Park station. As the train was leaving the station the victim saw someone on the platform carrying his tripod bag. CCTV footage from Wiley Park station clearly shows the applicant carrying the tripod bag while Merhi was looking through the wallet. 23. The victim remained on the train and spoke to the train guard. He reported the offence to police a short time later and provided a statement that afternoon." 13 The sentencing judge in his remarks on sentence observed (remarks on sentence, p.6):- "Those facts clearly disclose the commission of three very serious offences by the offender within a three day period. The offences of armed robbery and robbery in company are offences not only against property but also against the person. Armed robbery, in particular, is perceived by everyone as a life threatening situation, particularly when the offender is holding a knife and it is for this reason that the offence is regarded so seriously by the legislature, the courts and the community."

Subjective circumstances 14 The sentencing judge noted that the applicant was born in Australia on 12 November 1982 and that he was therefore 24 years of age at the time of the offences. 15 A pre-sentence report dated 30 October 2007 recorded that he was the fourth oldest of six children and that prior to his arrest he had been living with his family. He had left school during Year 11, completed hairdressing and carpentry courses and had a trade certificate in aluminium glazing. 16 The report noted that the applicant acknowledged a long-term problem with illicit drugs and, to a lesser extent, alcohol. The history was that he had commenced smoking cannabis at 19 years of age and became a regular user. He claimed to have started using cocaine at age 20 and became addicted to it. At age 21, he began using the drug crystal methamphetamine hydrochloride or "ice". It was noted that he had undertaken drug and alcohol programmes whilst in custody. 17 He gave evidence at the sentencing hearing and wrote a letter dated 13 October 2007 which became Exhibit 3 and in which the applicant set out matters concerning himself, the death of his grandfather and its effect on him, his drug-taking and other matters. In the letter he also expressed his regret and remorse. 18 The probation report recorded that the applicant was remorseful and took full responsibility for his offences. 19 The report also recorded the applicant as having travelled to Lebanon in 2006 and there being exposed to traumatic experiences including the bombing of houses and people being killed and injured. This history had also been recorded in a report by Dr Olav Nielssen, psychiatrist, dated 16 October 2007. 20 Dr Nielssen diagnosed the applicant as suffering from post-traumatic stress disorder as a result of a "near death experience" and "exposure to traumatic events in a war zone". As the sentencing judge observed, Dr Nielssen had not clarified what the "near death experience" was. 21 In his sentencing remarks, the sentencing judge observed that Dr Nielssen also diagnosed substance abuse disorder, adjustment order and possible traumatic brain injury. 22 His Honour considered that Dr Nielssen's reference to brain injury was entirely speculative and no weight was placed upon it. 23 There was also tendered before the sentencing judge reports of Mr Tim Watson-Munro, consultant forensic psychologist, dated 1 November and 12 November 2007. 24 The sentencing judge placed significance on the fact that the reports of Dr Watson-Munro did not refer to the applicant having suffered any trauma as a result of exposure to events in the war in Lebanon in 2006. Mr Watson-Munro, it was noted, referred to an escalation in the applicant's drug use in 2006 after having lost his job and the death of his grandfather. 25 The sentencing judge also noted Mr Watson-Munro's reference to the applicant's drug use as affecting his emotions and judgment and that, at times, he was experiencing symptoms of a drug induced psychosis. 26 For reasons set out in the remarks on sentence, the sentencing judge was not satisfied that the applicant had been exposed to the war experiences to which he claimed in the 2006 year. He noted, in this respect, inconsistencies in the history given to Mr Watson-Munro and the failure by the applicant to refer to such experiences in his letter to the Court (Exhibit 3). Accordingly, his Honour did not accept the diagnosis made of a post-traumatic stress disorder, having regard, in particular, to the inconsistencies in the applicant's historical accounts. 27 The sentencing judge went on, however, to state that, even if the applicant had been exposed to the trauma of war and the near death experience in 2006 (remarks on sentence, p.13):- "… I do not accept that those circumstances reduce his criminal culpability in the commission of these offences. He made a deliberate decision to escalate his drug use and he is therefore responsible for the consequences of his decision and his actions. There is no evidence that his depression is causally related to the commission of the offence." 28 His Honour went on to state that the applicant's convictions for prior offences did not entitle him to the leniency afforded to a first-time offender. 29 He then added (remarks on sentence, p.14):- "The two armed robbery offences are aggravated by the fact that they were committed in company. I accept Mr Coroneos's [sic] submissions that relevant mitigating factors applying to all offences are that the loss caused by the offence was not substantial and that the offences were not part of a planned or organised criminal activity." 30 The sentencing judge accepted that prospects for rehabilitation were positive and that the applicant was unlikely to re-offend in a similar manner. 31 In relation to the early plea of guilty, the applicant was held to be entitled to a discount of 25%. 32 The issue of parity was then addressed in the remarks on sentence. The sentencing judge found that the applicant was a co-offender with Merhi in respect of the armed robbery offence for which Merhi was sentenced but not for the two counts of robbery in company for which Merhi was also sentenced.

Ground 1: The sentence imposed upon the applicant in respect of the second charge was manifestly excessive, in circumstances where his Honour gave too much weight to the offence to be taken into consideration. 33 The submission on behalf of the applicant was that the sentence imposed for Count 2 was excessive, his Honour, it was contended, having given too much weight to the Form 1 matter. 34 In support of the applicant's submission, Mr Lange of counsel placed reliance on the guideline decision in Regina v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 in respect of offences of armed robbery. 35 The guideline range specified in Henry for such offences is between four to five years' imprisonment. In that case, the Chief Justice identified the relevant category of case for the purpose of determining a guideline as that which includes the following characteristics:-

(1) Young offender with no or little criminal history.

(2) Weapon like a knife, capable of killing or inflicting serious injury.

(4) Limited, if any, actual violence but a real threat thereof.

(5) Victim in a vulnerable position such as a shop keeper or taxi driver.

(7) Plea of guilty, the significance of which is limited by a strong Crown case. 36 Spigelman CJ stated in Henry (supra) that sentences for an offence of the kind identified by the above characteristics should generally fall between four and five years for the full term. In this respect, however, the Chief Justice observed that the seven characteristics identified above did not represent the full range of factors relevant in the sentencing exercise and that many of the characteristics contained within themselves an inherent variability. 37 In the present case, the applicant was, as earlier noted, aged 24 years at the time of the offence and, although not unknown to the criminal justice system, had not previously been involved in offending of the kind in question in the present application. It was contended on his behalf that the robberies did not involve more than a limited degree of planning. I consider, however, that there is some merit in the submission made on behalf of the Crown that although there was a finding that the offences were not part of a planned or organised criminal activity, nonetheless the applicant and his co-offender would appear to have travelled on trains for the purpose of robbing travellers and, in respect of the two armed robbery offences, doing so whilst armed with a knife for the purpose. 38 Mr Lange, in his written submissions (paragraph 5), observed that the Henry guideline was predicated upon the assumption that the offender entered a late plea of limited utilitarian value. He stated:- "… it is now accepted doctrine that the seventh characteristic identified by the Chief Justice refers to a late plea in respect of which the guideline range in Henry has been taken as having allowed a discount of only 10%." ( Regina v Sundar [2005] NSWCCA 93 at [17] per Tobias JA, citing Regina v Hemsley [2004] NSWCCA 228 at [30] 39 The submission was that where the offender, as in the present case, entered a plea of guilty at the earliest reasonable opportunity, the significant utilitarian value was such that the appropriate range based on the Henry guideline was between three years and four months (40 months) and four years and two months (50 months). These figures were arrived at by removing the 10% discount from the range specified in Henry (supra) and instead applying a discount of 25%. 40 The submissions for the applicant acknowledged that the reference to the direct applicability of Henry (supra) by the sentencing judge indicated that he was aware of the need to adjust the range of four to five years' imprisonment. In that respect, reference was made to a passage in the remarks on sentence at 17 as follows:- "I take into account, however, that the guideline applies to a late plea of guilty, and as I have already said, the offender pleaded guilty at the first reasonable opportunity in the Local Court. That means there must therefore be an appropriate adjustment to the guideline." 41 Mr Lange contended that it was, accordingly, plain that the sentencing judge envisaged a sentence of imprisonment of between 40 and 50 months in respect of the second charge. 42 In consequence the submission was the sentencing judge must have increased the sentencing range by between 10 months and 20 months in considering the Form 1 matter and that this approach demonstrated error. This inferred increase in the sentence was arrived at by calculating the difference between the starting sentence (of between 40 and 50 months) and the term of imprisonment ultimately imposed in respect of Count 2 (that being five years or 60 months). 43 Accordingly the submission was:- "9. At the very least, his Honour increased the sentence imposed upon by [sic] the applicant by 10 months, which was inappropriate where the offence was merely placed on a Form 1. See Attorney-General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146, 162 at [66] per Spigelman CJ. (emphasis added): 'The effect of inclusion on a Form 1 is to give the offences so included a significantly lower salience in the sentencing process. There will be an obvious advantage, and hence a greater incentive to admit guilt, where the Form 1 procedure is employed.'" 44 However, it is also to be noted that the Chief Justice in Attorney-General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146, also observed:- "The position, in my opinion, is that, although a Court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged . The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has, in fact, been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence …" (emphasis added) 45 The Form 1 matter and the first and the second charges all occurred within a few days of one another. The Form 1 matters, as noted above, occurred on Saturday 17 February 2007 and the two armed robbery offences occurred some two days later, 19 February 2007. It is clear that these events all occurred as a course of conduct by the applicant. That is not a matter without significance in evaluating the first ground of appeal. 46 I consider that this is a case in which specific or personal deterrence was an issue of importance to the sentences imposed. The commission of the three offences by the applicant amounted to a course of conduct by the applicant and the sentencing judge was, accordingly, entitled, by reason of that conduct, to give greater weight to the question of personal deterrence than might otherwise have been the case. 47 Accordingly, I do not consider that it has been established that his Honour did give undue weight to the matter on the Form 1 as contended on behalf of the applicant. The objective seriousness of the offence in Count 2 was at a high level and when the circumstances of the Form 1 matter are taken into account, I do not consider that the sentence imposed in respect of that offence was, on the bases argued, manifestly excessive. The sentence was, in my opinion, within the sentencing range. Ground 1 should be rejected.

Ground 2: The sentence insufficiently reflected his Honour's finding of special circumstances 48 As to the second ground of appeal, it was claimed that the overall sentence imposed insufficiently reflected his Honour's finding of special circumstances (such finding warranting a departure from the normal proportion of the non-parole period as against the total term of sentence) 49 As noted by the applicant, whilst the individual sentence in respect of Count 2 produced a ratio of 60% (thus departing from the statutory ratio of 75%), the overall sentence imposed having regard to the effect of accumulation between the two offences, departed from the statutory ratio to a lesser extent, producing a ratio of 66%. 50 In considering whether the difference between the ratio of 60% in respect of Count 2 and the ratio of 66% in respect of the accumulated counts evidenced error, reliance was placed upon observations in Regina v DBN [2005] NSWCCA 435 at [33] wherein Rothman J observed:- "In circumstances where a sentencing judge deliberately fixes a non-parole period which is less than the statutory ratio described in s.44(2) of the Crimes (Sentencing Procedure) Act, it will be assumed that that ratio is to be reflected in the overall sentence ratio, unless the judge expressly signifies otherwise. 51 The applicant submitted there was nothing to suggest his Honour had intended for the lower ratio of 60% to apply to the sentence imposed for Count 2 alone rather than in respect of the accumulated sentences for both counts. 52 As the Chief Justice observed in Regina v Simpson [2001] NSWCCA 534 at [73], the finding of special circumstances involves, firstly, a question of fact and, secondly, an exercise of judgment to determine that the special circumstances justify a lower proportion in the relationship between the non-parole period and the head sentence. The Chief Justice also observed that there are well known restraints on an appellate court interfering with decisions of that character. 53 In the present case it is clear, in my opinion, that the sentencing judge had specific regard to the offences as part of a course of conduct and, whilst making a finding of special circumstances, explicitly accumulated the sentence in respect of Count 2 to operate 12 months into the fixed term sentence imposed in respect of Count 1. The end result of his Honour's approach still gave effect to the finding of special circumstances insofar as the ratio of non-parole to total effective sentence was of the order of 66%, producing a shorter non-parole period of approximately six months than would have been the case had the statutory ratio of 75% been applied. 54 I am of the opinion that Ground 2 is, in essence, seeking to establish error in respect of what is a judgment involving matters of evaluation and discretion, I do not consider that error of a kind, in the circumstances of this case, would justify appellate intervention. I am of the opinion that this ground should be rejected. 55 In conclusion, I observe that his Honour was clearly mindful of the facts and circumstances pertaining to each offence and that each was a serious one. I consider that the offences warranted the effective non-parole period of four years with a total effective sentence of six years. I respectfully consider that his Honour's exercise of judgment was appropriate and that the applicant's need for supervision on parole was an important matter to be taken into account in sentencing him both in his own interests and in the interests of the community. 56 Accordingly, I propose the following orders:-

(2) Appeal dismissed. 57 HARRISON J: I agree with Hall J. **********

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