Gebara v R

Judgment 1McCALLUM J: Khaled Gebara seeks leave to appeal against the sentences imposed upon him in the District Court after he pleaded guilty to two offences of aggravated armed robbery contrary to s 97(2) of the Crimes Act 1900. The circumstance of aggravation in each instance was the use of a dangerous weapon. 2The maximum penalty for aggravated armed robbery is imprisonment for twenty five years. For each offence, the applicant was sentenced to imprisonment with a non-parole period of three years and a balance of term of two years. The sentence imposed for the second offence was accumulated by 12 months on the first, giving an aggregate sentence of six years imprisonment with a non-parole period of four years. 3The first offence was committed at a brothel in Bankstown on 13 May 2010. The applicant and his co-offender, Mustafa Elbadar, went to the brothel at about 1.30 am. Elbadar was armed with a black 9 mm handgun. The evidence did not establish that the gun was loaded at the time of the offence. It was later found at Elbadar's home, together with three bullets which were found to be blanks. Upon examination, the gun was found to be in working order. 4The offenders entered the brothel together. The applicant grabbed the doorman and pushed him against a mirror while Elbadar pointed the gun at him. They demanded money and the applicant pushed the doorman towards the office. The doorman removed $1,100 from the till. The applicant responded with a demand to "go and get the rest of the money", gesturing towards the DVD player in the office. The doorman then removed a further $1,200 from a video cassette in that area. 5The applicant was identified from CCTV footage taken from the brothel. When approached by police, he made full admissions as to his involvement in the offence. Police described him as "very co-operative" and stated that he showed signs of remorse for his actions. 6The applicant told police that the proceeds of the robbery were approximately $1,400, of which he received $700. I note that does not accord with the amounts allegedly handed over by the doorman (as recorded in the agreed statement of facts). 7The second offence was committed two days later at about 9.30 pm at a supermarket in Wiley Park. On that occasion, the applicant and Elbadar were joined by a third offender, Moudasser Kanj. Elbadar and Kanj went into the supermarket whilst the applicant waited outside in the car. Elbadar was armed with the handgun used in the earlier robbery. Kanj was also armed with a pistol but that was not recovered by police. 8Elbadar and Kanj pointed their pistols at staff in the supermarket and demanded money. One of the employees gave them $800 in cash. Elbadar then removed a number of packets of cigarettes from a cabinet and demanded more, which the employee gave him. They then ran from the store and were chased by the two employees. One of the employees slipped and fell whilst chasing them, fracturing his kneecap. 9The applicant saw the co-offenders running towards the car and moved into the driver's seat. When they got to the car, he drove them away from the scene. 10When spoken to by police, the applicant admitted his involvement in the offence but claimed that he had wanted nothing to do with it. He admitted that he had been told "what to do" if the co-offenders got into a fight. He also admitted driving them from the scene. 11The learned sentencing judge found that the applicant was aware, before the offence was committed, that Elbadar was armed with the pistol used in the earlier offence. He did not find that the applicant was aware that Kanj was also armed. 12The first ground of appeal is: The learned sentencing judge erred in failing to give adequate consideration to the long term emotional and psychological difficulties of the applicant as outlined in the medical reports that were available at the time of sentencing. 13There was medical evidence before the learned sentencing judge in reports from Dr Clive Smith, Child and Adolescent Psychiatrist, Dr John Jacmon, Consultant Psychologist and Dr Hugh Morgan, Consultant Psychiatrist. Those reports disclosed that the applicant had an extensive history of emotional and psychological difficulties. He had been diagnosed with Attention Deficit and Hyperactivity Disorder (ADHD) and impulsivity from an early age. He had also encountered difficulties dealing with the separation of his parents and a series of traumatic events in his own life. 14The judge referred extensively to that material. He noted that Dr Clive Smith had been treating the applicant since 1992 and that there had obviously been a difficult history within the family and for the applicant. The judge noted the diagnosis and the difficulties encountered by the applicant as a result. In that context, his Honour also recorded positive attributes of the applicant including his sense of responsibility for his siblings and his attempts to support the family by obtaining employment. 15The judge also noted the difficulties experienced by the applicant when two close friends of his died, as recorded by Dr Hugh Morgan, the Consultant Psychiatrist. 16The applicant does not suggest that the judge overlooked that material altogether. The contention is that his Honour failed to give it "adequate consideration". As submitted on behalf of the Crown, it is well established that the circumstances in which matters of weight in the exercise of a judge's sentencing discretion will justify intervention by this Court are narrowly confined: R v Baker [2000] NSWCCA 85 at [11] per Spigelman CJ, Grove and Hidden JJ agreeing at [22] and [23] respectively; cited most recently in Yang v R [2012] NSWCCA 49 at [25] per R A Hulme J, Macfarlan JA and R S Hulme J agreeing at [1] and [2] respectively. 17The judge expressed the view that the circumstances of the offences were "more serious than that commonly experienced in offences of this nature". However, his Honour balanced that finding against the age of the offenders, particularly Elbadar (who was 18), and "the fact that they have no prior convictions" (in fact, the applicant did have prior convictions including one for stalking and one for common assault, a matter the judge referred to later in the remarks on sentence). After referring extensively to the medical evidence and other aspects of the subjective case presented on behalf of the applicant, the judge stated: All in all, the circumstances in the evidence which has been tendered to me indicate that I should not go beyond the sentence range foreshadowed in the decision of Henry. 18The applicant relies on that remark as revealing error. It was submitted that the correct approach should have been to use the subjective material "as a reason to diminish the sentence, rather than use it as a reason to refrain from increasing the sentence". Having regard to the judge's finding that the circumstances of the offences were more serious than commonly experienced in offences of that nature, I do not think there is any force in that submission. The judge plainly gave weight to the compelling subjective case, including the medical evidence, in mitigating the sentence that would otherwise have been imposed. In my view, ground 1 must be dismissed. 19Ground 2 is: The learned sentencing judge erred in failing to properly distinguish the applicant's behaviour from that of his co-offenders, thus giving rise to a justifiable sense of grievance. 20This ground relates only to the sentence passed in respect of the second offence. The judge noted that the applicant's role was less in relation to that offence (ROS 6). In distinguishing between the roles of the two offenders, his Honour noted that Elbadar had the gun. As to the first robbery, the judge found that the applicant knew about the gun and that the offence was "a joint criminal enterprise in each and every sense of the word". His Honour concluded that the sentences should be equal in respect of that robbery. 21Turning to the second offence, the judge said: Mr Gebara stayed outside but that was again clearly in the circumstance where he knew what was happening. Absent other evidence, he also knew as a matter of the overwhelming inference that Mr Elbadar had a gun. Clearly Mr Kanj also had a gun but whether that was known to Mr Gebara or not I do not know. What was clear was that both of those were going to be involved in a robbery and he, Mr Gebara, was involved in the driving the getaway car. He was paid for his services. In other words, there was a joint criminal enterprise involved and it was proper that there be a plea of guilty. 22Elsewhere, the judge noted that the age of the offenders "particularly Mr Elbadar" was a factor to be balanced against the seriousness of the offence. Elbadar was 18 at the time of the offences and was described by the judge as "indeed a very young offender". The applicant was 23. 23As submitted on behalf of the Crown, the sentencing of offenders who are parties to the same joint criminal enterprise should "begin with" and "not lose sight of" the fact that they were all participants in the commission of the same crime: Johnson v R; Moody v R [2010] NSWCCA 124 at [4] per James J. The relevant principles are discussed in the judgment of Simpson J in Johnson and Moody at [12] to [17]. The majority in that case approached the matter on the basis that the driver of a getaway vehicle should not necessarily receive a lesser sentence than those who entered the premises and committed the robbery: at [7] per James J; at [21] per Simpson J; Barr AJA contra at [94]. 24Having regard to those principles and the difference in age between the two co-offenders, I am not persuaded that error has been demonstrated in the sentencing judge's approach. 25The third ground of appeal is: The learned sentencing judge erroneously categorised the facts of both offences as more serious than commonly experienced for offences being dealt with under the Henry guideline judgment. 26This ground invokes the decision of this Court in R v Henry (1999) 46 NSWLR 436, which promulgated a sentencing guideline for offences under s 97(1) of the Crimes Act (at [48]). The category of case which the Court in that decision held was sufficiently common for the purposes of determining a guideline was as follows (at [162]): (i) Young offender with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case. 27The Court held that sentences for an offence of the character identified should generally fall between four and five years for the full term: at [165] per Spigelman CJ, Wood CJ at CL agreeing at [213], Newman J agreeing at [278], Simpson J agreeing at [332], R S Hulme J contra at [317]. 28In my view, it was plainly open to the learned sentencing judge to take the view that the offences in the present case were more serious than the category of offence addressed in the Henry guideline. The decision in Henry was concerned with offences under s 97(1) of the Crimes Act. The offences in the present case were under s 97(2), being aggravated by the use of a dangerous weapon. As noted on behalf of the Crown, the amounts taken could not be regarded as small. The offences were committed in company. The first offence involved actual violence against a vulnerable person in the middle of the night. The offence at the supermarket was the second offence committed within two days. 29Ground 3 must be dismissed. 30There is one further aspect of the sentence that should be noted. The judge stated that in each case the appropriate sentence would normally be six years and three months imprisonment (75 months). Purportedly applying a 25% discount for the early pleas of guilty, his Honour arrived at a head sentence of five years on each count. In fact, the application of a 25% discount to the starting point of 75 months should have produced a sentence of approximately four years and 8 months. The actual discount was 20%. 31It is possible that his Honour intended to arrive at a head sentence of five years and that the mathematical error was in the calculation of the starting point. That may be inferred from his statement (at ROS 14) that the imposition of a penalty of the range of 8 to 10 years would be appropriate in the circumstances of the robberies under consideration. The application of the 25% discount to the bottom of that range (eight years) produces a sentence of six years, which is what his Honour achieved with sentences of five years for each offence, with 12 months' accumulation. However, as he was not imposing an aggregate sentence but separate sentences for each offence with an element of accumulation, that approach was not available. On the other hand, that calculation demonstrates that the result was appropriate and that no lesser sentences were warranted in the circumstances: Criminal Appeal Act 1912, s 6(3). 32The orders I propose are that leave to appeal be granted but that the appeal be dismissed. 33BASTEN JA: I agree with McCallum J. 34HOEBEN JA: I also agree with McCallum J.