Hamze v Regina

Court of Criminal Appeal (NSW)|2006-02-03|Before: Giles JA, Grove J, Hoeben J

JUDGMENT OF: Giles JA at 1; Grove J at 62; Hoeben J at 63

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Appeal against sentence - whether elements of offence taken into account as aggravating factors - s21A of Crimes (Sentencing Procedure) Act 1999 - robbery - actual or threatened use of violence as elements of offence - threatened or actual use of violence as elements of offence - commission in company as element of offewnce - whether facts justified aggravating factor of disregard for public safety - whether offences in Form 1 could be taken into account as aggravating factor of series of offences - error found in some respects - but no less severe sentence warranted in law.

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; R v Baxter [2005]NSWCCA 234; R v Blair [2005] NSWCCA 78; R v Farrer (1983) 78 FLR 10; R v Foster (1995) 78 A Crim R 517; R v Ibrahimi [2005] NSWCCA 153; R v Kelly [2005] NSWCCA 280; CASES CITED: R v Janceski [2005] NSWCCA 288; R v Johnson [2004] NSWCCA 76; R v Salieb [2005] NSWCCA 85; R v Smith and Desmond (1965) AC 960; R v Street [2005] NSWCCA 139; R v Suaali [2005] NSWCA 206; R v Tadrosse [2005] NSWCCA 145; R v Way [2004] NSWLR 168; R v Wickham [2004] NSWCCA 193.

COUNSEL: B Rigg - Appellant W Dawe QC - Crown

SOLICITORS: S O'Connor - Appellant S Kavanagh - Crown

IN THE COURT OF CRIMINAL APPEAL CCA 2005/18/44 DC 03/11/1053

GILES JA GROVE J HOEBEN J

Monday 6 March 2006 Wesam HAMZE v REGINA Judgment 1 GILES JA: The applicant pleaded guilty to charges on indictment of robbery armed with a dangerous weapon and in company (count 1) and knowingly taking part in the unauthorised sale of a firearm (count 2). Three offences on a Form 1 were taken into account in relation to the robbery offence, being break enter and steal, robbery armed with a dangerous weapon and in company, and being carried in a conveyance without the consent of the owner. For the robbery offence the applicant was sentenced, taking into account the three Form 1 offences, to imprisonment for six years and nine months to commence on 28 June 2002 and expire on 27 March 2009 with a non-parole period of four years to expire on 27 June 2006. For the firearms offence he was sentenced to imprisonment for five years to commence on 2 July 2005 and expire on 1 July 2010 with a non-parole period of 2 years to expire on 1 July 2007. The effective total sentence was for eight years and four days with a non-parole period of five years and four days. 2 In the application for leave to appeal against sentence the grounds of appeal were - "1. His Honour erred in taking into account as an aggravating factor the threatened and actual use of violence in count 1 and the Form 1 matter.

His Honour erred in taking into account as an aggravating factor the threatened and actual use of a weapon in count 1 and the Form 1 matter.

His Honour erred in taking into account as an aggravating factor the commission of count 1 in company.

His Honour erred in taking into account as an aggravating factor the commission of count 1 without regard to public safety.

His Honour erred in taking into account as an aggravating factor the characterisation of count 1 as one [of a] series of criminal acts.

His Honour failed to demonstrably take into account the applicant's assistance to authorities, in relation to count 2."

Facts 3 At about 10.30 pm on 27 June 2002 the applicant and three other men, all wearing dark clothing, balaclavas and gloves and at least one armed with a sawn-off shotgun or rifle, entered a service station at Granville. Present in the service station were the console operator, Mr Kamal Khalil, and a customer, Mr Danny Alhawli. Mr Khalil was receiving payment from Mr Alhawli. One of the men approached Mr Khalil and pointed the firearm at his head and threatened him, demanding entry to the console area. He ordered Mr Khalil to lie on the floor and took his wallet. Another of the men ordered Mr Alhawli to lie on the floor. A man with a firearm entered the console area and placed its end into Mr Khalil's back, demanding to be told where the phone cards were stored. Mr Khalil pointed to them. The men left the service station with cash, cigarettes and phone cards; some stock was damaged. Mr Muhamad Muhieddine, a friend of Mr Alhawli, was waiting for him in a car outside the service station, and saw what occurred; he called the police. This was the offence charged in count 1. 4 The applicant and the other men arrived at the service station, and then left it, in a stolen motor vehicle. This was the conveyance offence on the Form 1. 5 Prior to these events and with appropriate warrants, the police had intercepted telephone conversations between the applicant and other persons, including one Simon Raha. On 22 June 2002 Mr Raha asked the applicant how much he wanted to sell two guns as Mr Raha had someone he could sell them to. The applicant said that he wanted $4,000 for the guns. Mr Raha said he would call back. He did so, and there was discussion of the price and sale of the only gun the applicant had left, a "44". The applicant was not authorised to sell the firearm under the relevant legislation. This was the offence charged in Count 2. 6 On 2 February 2002 the applicant and at least four other men broke into premises at Silverwater used for the repair of mobile telephones. They stole a considerable number of mobile telephones, some of which were found the next day at premises occupied by the applicant. The judge observed, "[h]is attempt to deflect police inquiries by informing the police that he had found the telephones on his front lawn earlier that morning was an attempt doomed to failure". This was the stealing offence on the Form 1. 7 At about 10.15 pm on 24 June 2002 the applicant and one Ahmed Hawat entered a (different) service station at Granville. Present in the service station were the console operator, Mr Ali, and his assistant, Mr Robert McDermott. The applicant and Mr Hawat were wearing balaclavas and armed with firearms. One of them demanded that Mr Ali open the till. One of them discharged his firearm. Cash, cigarettes and phone cards were taken. This was the robbery offence on the Form 1. 8 As to this robbery offence, the judge said - "Of somewhat more concern is the remaining item on the Form 1, which is again a robbery in company whilst armed with a dangerous weapon. This occurred on 24 June 2002, that is but a few days before the offence on the indictment. In some ways I have been concerned as to whether I should in fact permit this offence to be taken into account on a Form 1 because it represents, if anything, a even worse example of this very grave offence than the one which is on the indictment. ... " 9 His Honour did not take his concern further, but said that the offences on the Form 1 were "very serious in themselves", depicted "a very grave course of serious criminal activity over a short period of time", and "must result in a material increase in the sentence for the offence on count 1 in the indictment".

Grounds 1 to 3: Aggravating factors as elements of the offences 10 These grounds can conveniently be considered together. It was submitted that the judge erred in treating the various matters as aggravating factors, taken into account in accordance with s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, when they were elements of the offences. 11 Section 21A(1) provides that, in determining the appropriate sentence for an offence, the court is to take into account the aggravating factors referred to in sub-s (2) that are relevant and known to the court, the mitigating factors referred to in sub-s (3) that are relevant and known to the court, and any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in sub-s (1) "are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law". 12 Section 21A(2) then lists a number of matters, relevantly to the present case providing - "(2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(b) the offence involved the actual or threatened use of violence,

(d) the offender has a record of previous convictions,

(i) the offence was committed without regard for public safety,

(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,

(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant),

(m) the offence involved multiple victims or a series of criminal acts,

(n) the offence was part of a planned or organised criminal activity.

The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence ." (emphasis added ) 13 The judge described the charges on the indictment and the pleas of guilty, and said that he approached the sentencing on the basis that the applicant "indicated a willingness to plead guilty at the earliest opportunity and his willingness in that respect earns the utilitarian value discount of 25 per cent." His Honour described the facts, including those of the offences on the Form 1. After his reference to the offences on the Form 1 resulting in a material increase in the sentence for the offence in count 1, he said - "Indeed it is in some ways not only I suppose appropriate but at least convenient to review as the Crown, and indeed Mr Stanton did, the factors nominated in s 21A of the Crimes (Sentencing) Procedure Amendment Act to look at the high level of criminal culpability displayed by the prisoner on this occasion. As to the count 1 on the indictment, and the first of the items on the Form 1, there was of course a vulnerable victim. The Court of Criminal Appeal has spoken on a number of occasions about the need to extend protection to people who, for the benefit of society's convenience, find themselves working in situations where they are susceptible to crimes of this nature. Both this offence and the one on the Form 1 contain a number of aggravating elements. Clearly, having regard to the clothing, the balaclavas, the gloves and firearm, they were part of a planned or organised criminal activity. They involve the threatening use of violence and, indeed, some actual violence against Mr Kalib [sic]. They involved a threatened use of a weapon, indeed in the defence [sic: offence] on the Form 1, the actual use of the weapon. This offender has a record of previous convictions and I will say more about that later. The offence was committed in company. It was committed without regard for public safety, and having regard to the items on the Form 1, count 1 must be seen as one of a series of criminal acts." 14 The judge went on to refer to the commission of the offence charged in count 1 whilst the applicant was on bail for a driving offence as a "significantly aggravating factor to be taken into account in determining his criminality on this occasion". He added - "It can be seen that during the first half of 2002 from February through to June the prisoner was engaged in a quite prolonged and extremely serious course of criminal misconduct." 15 The judge then said that he "turned to consider [the applicant's] subjective circumstances". He did not further discuss the seriousness of the offences, but did indicate that prior to discounts "were I approaching this crime of 27 June 2002 with the extremely serious matters on the Form 1 I would have commenced with a sentence of 12 years". 16 The judge's reference to review of the factors by the Crown and Mr Stanton, counsel for the applicant, deserves explanation. Submissions on sentencing had been made by Mr Stanton, by the Crown, and by Mr Stanton in reply. The transcript then records - GREY: Your Honour, there was just one thing and I do apologise, I should have referred to s 21A of the Crime (Sentencing Procedure) Act in terms of the aggravating factors. I'll just quickly go through the ones which the Crown would ask your Honour to take into account. 2B, the offence involved actual or threatened use of violence. 2C, the offence involved the actual or threatened use of a weapon. 2D, the offender has a record of previous convictions. 2E, the offence was committed in company. 2I, the offence was committed without regard to public safety, 2L, the victim was vulnerable due to the occupation, and I've already submitted to your Honour in relation to that. 2M, the offence involved multiple victims or a series of criminal acts, and 2N, the offence was part of a planned or organised criminal activity. HIS HONOUR: Yes, all right. Did you want to look at the other -- STANTON: My friend had already identified those matters, with respect, your Honour. I don't wish to be heard. HIS HONOUR: Yes. GRAY: I know, I just thought I should do so in terms of the actual section. HIS HONOUR: A means of recapitulating, I suppose, but that's 21A(2). Is there anything in 21A(3) that you wanted to point to? STANTON: No, your Honour." 17 It will be seen that the Crown indiscriminately invited the judge to take into account the identified matters, without assistance in their application to the various offences. Mr Stanton did not suggest that there would be error in doing so. 18 In his review the judge referred to the matters in the paragraphs in s 21A(2) set out above. The applicant did not take issue with the judge's reference to the matters in paras (d), (j), (l) and (n). That the applicant had a record of prior convictions (para (d)) was not properly to be taken into account in aggravation of the offences, although it could deprive the applicant of leniency or mean that it was appropriate to give more weight to matters such as retribution, deterrence or community protection (R v Johnson [2004] NSWCCA 76 at [32]-[37]; R v Wickham [2004] NSWCCA 193 at [24]; R v Blair [2005] NSWCCA 78 at [53]; R v Baxter [2005] NSWCCA 234 at [31]). But the judge said that he would refer to that matter later, and when he did so did not in fact treat it as an aggravating factor but only as a matter not assisting the applicant. The applicant submitted that the judge erred in taking into account the factors in paras (b), (c) and (e), (and also the factors in paras (i) and (m) the subject of grounds 4 and 5, although not because they were elements of the offence). 19 The judge appears to have taken account of the factors in paras (b) and (c) in relation to the robbery offence on the Form 1 as well as the offence charged in count 1, but to have taken into account the factor in para (e) only in relation to the offence charged in count 1. The applicant accepted that position. Section 21A(2) applies only to sentencing for offences, but the applicant acknowledged that it was appropriate to take into account aggravating factors in assessing the seriousness of a Form 1 offence and the extent to which it might legitimately increase the sentence for the primary offence. 20 The sentencing hearing was on 2 July 2004. In R v Wickham, in which judgment was given on 17 June 2004, Howie J, with whom Bell and Hislop JJ agreed, said - "[22] When a sentencing court is about to consider matters of aggravation or mitigation under s 21A it is important that it recognises the limits upon the use to be made of those factors. The first is that found in relation to factors of aggravation in s 21A(2) which, after listing a number of aggravating features, provides: 'The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.' The effect and policy behind such a limitation is self-evident: there should be no double counting of aggravating features of an offence. [23] The second limitation is that found in s 21A(4), which provides: 'The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.' The effect of this provision is to ensure that a factor is not taken into account in a way inconsistent with general sentencing principles and policy. It was the intention of Parliament to replicate the common law." 21 In R v Kelly [2005] NSWCCA 280 Rothman J said at [40] - "40 One of the unfortunate aspects of the prescription of aggravating factors in s.21A of the Crimes (Sentencing Procedure) Act 1999 is that it is used, from time to time, as an aide memoire or check list by those judicial officers called upon to sentence. It has been pointed out on a number of occasions that most of the relevant factors in s.21A of the Crimes (Sentencing Procedure) Act 1999 would, on general principles, have been taken into account in sentencing even before the enactment of the provision. The terms of the listed factors can, in their generality, be misleading if account is not taken of the qualifications necessarily inherent, and otherwise expressed, in this section. Even though a matter may be described as an aggravating factor, if it forms part of the elements of an offence or cannot, as a matter of law, be taken into account, then, notwithstanding the generality of description in s.21A of the Crimes (Sentencing Procedure) Act 1999 , such a matter cannot be an aggravating factor in the determination of the sentence for the offence in question." 22 The force of these observations is not affected by his Honour's dissent in the result in that case. They are very much in point in the present case. Led into that course by the Crown Prosecutor and Mr Stanton, the judge addressed the seriousness of the offences by a check list from s 21A(2), without the desirable attention to whether and how the identified matters were properly to be taken into account. 23 The offence charged in count 1 and the robbery offence on the Form 1 rested upon s 97 of the Crimes Act, which relevantly provides - "(1) Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, or stops any mail, or vehicle, railway train, or person conveying a mail, with intent to rob, or search the same, shall be liable to imprisonment for twenty years.

(2) Aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) when armed with a dangerous weapon. A person convicted of an offence under this subsection is liable to imprisonment for 25 years.

Para (b) - Actual or threatened use of violence. 24 To repeat, the judge took into account as "aggravating elements" of the offence charged in count 1 and the robbery offence on the Form 1 that "[t]hey involve the threatening use of violence and, indeed, some actual violence against Mr Kalib [sic]". 25 While in earlier times robbery may have been limited to where there was actual violence, it became sufficient that there was "a putting in fear of violence as by a threat of violence": R v Smith and Desmond (1965) AC 960 at 979. In R v Foster (1995) 78 A Crim R 517 it was said in the joint judgment of Hunt CJ at CL and Smart and Levine JJ at 522 - "The essence of a robbery is that violence is done or threatened to the person of the owner or custodian who stands between the offender and the property stolen, in order to overcome that person's resistance and so to oblige him to part with the property; in other words, the victim must be compelled by force or fear to submit to the theft: Smith v Desmond [sic] [1965] AC 960 at 985-987, 997-998; (1965) 49 Cr App R 246 at 260-263, 275-276. It is not sufficient that the threat of violence is made after the property has been taken; both elements of the offence must coincide: Emery (1975) 11 SASR 169 at 173. See also Butcher [1986] VR 43 at 48, 54; 16 A Crim R 1 at 6, 12-13. An armed robbery is one where the robbery takes place whilst the offender is armed with an offensive weapon." 26 Accordingly, while either threatened use of violence or actual use of violence is necessary, actual use of violence is not necessary. The victim may be threatened and thus submit to the theft; perhaps unusually, force may be used against the victim to effect the theft without a preceding threat, as by a striking from behind. Where the victim is threatened with the use of force, and the force is then used, there is more to the offence, which is more serious than if there is a threat of force alone. The present case is of this kind. The limitation in regard to an aggravating factor is not to be applied mechanically, but to give effect to the common law preclusion of double counting by increasing the offender's punishment because of something already taken into account by virtue of the conviction (after trial or on a plea of guilty). It was sufficient for the applicant's conviction that there was the threat of violence, and I do not think it correct to say that in this case actual violence was an ingredient of the offence for the purposes of the limitation in s 21A(2). 27 I do not think R v Suaali [2005] NSWCA 206 is to the contrary: it was there held at [11]-[15] that there was error in taking into account the factor in para (b) in sentencing for robbery, but without the need to distinguish actual use of violence from threatened use of violence. 28 However, it would be an error in this case to take threatened use of violence into account in aggravation of the offence. R v Street [2005] NSWCCA 139 at [32]-[34] appears to have turned on the judge's failure in explanation, without necessarily accepting the submission that the matters in paras (b) and (c) were elements of the offence of armed robbery. In R v Ibrahimi [2005] NSWCCA 153 threatened violence had been taken into account as one of the matters under s 21A, and it was accepted at [18] that there was error (although with reference to "some threat of force or actual force" as the element of the offence). The judge's reference to "actual violence against Mr Kalib" related only to count 1, and from "they" and "indeed" the preceding reference to the threatening use of violence related to both count 1 and the robbery offence on the Form 1. In my opinion, the judge did take into account as an aggravating factor the threatened use of violence, and was in error in doing so. 29 It should be said that, while the bare fact of threatened use of violence could not be taken into account, that did not preclude regard to the nature of the threatened use of violence in considering the seriousness of the offence. As was said by this Court in R v Way [2004] NSWLR 168 at [106]-[107] - "106 As s 21A(2)(e) makes clear, the factors, which are elements integral to the offence, are not to be taken, of themselves, as aggravating factors. For example, the bare fact that an offence was committed in company where that is an element of the offence (as is the case for offences charged under s 61J(2)(c) or s 97 of the Crimes Act ) cannot have an additional or cumulative effect.

107 That is not to say, however, that the nature and extent of the company, and the manner in which their presence and behaviour add to the menace of the occasion, cannot be regarded as circumstances relevant to the seriousness of the actual offence which is charged. Clearly the presence of a large number of overbearing and powerful companions can dramatically increase the objective seriousness, and moral culpability, of those who engage in a sexual assault of a lone victim, and s 21A(2)(e) should not be regarded as excluding reference to any such consideration." 30 The judge's check-list approach, however, meant that he did not explain whether or how he considered that the seriousness of the offences was greater because of the nature of the threatened use of violence. A threat by pointing a firearm may be of greater seriousness than a threat by a fist. It is necessary not to double count in having regard to threatened use of a weapon, but the manner of the threat by the use of the weapon can still heighten the seriousness. I am unable to see, from the judge's reasons, that he had regard to the quality of the threatened use of violence rather than the bare fact.

Para (c) - Threatened or actual use of a weapon 31 To repeat, the judge took into account as "aggravating elements" of the offence charged in count 1 and the robbery offence on the Form 1 that "[t]hey involved a threatened use of a weapon, indeed in the defence [sic: offence] on the Form 1, the actual use of the weapon". 32 The offence in s 97(2), building on s 97(1), requires that the offender be "armed with a dangerous weapon". In R v Foster it was said at 522-3 - "The violence or threat of violence involved in the armed robbery or attempted armed robbery by which the victim is or is intended to be compelled to submit to the theft may involve - but need not involve - the use of that offensive weapon with which the offender is armed. In Farrer (1983) 78 FLR 10, an armed robbery case, Kelly J held that a replica pistol was an offensive instrument because the accused was armed with it for the purpose of using it in the performance of the robbery. (A similar interpretation was given to the use of a motor vehicle to prevent a lawful apprehension in Hamilton (1993) 66 A Crim R 575 at 577-578; see also RJS (1993) 69 A Crim R 163 at 165.) None of those decisions suggests that the violence or threat of violence involved in an armed robbery must involve the use of the weapon or instrument with which the offender is armed." 33 In R v Farrer (1983) 78 FLR 10 Kelly J accepted at 15 that a person may be said to be armed with something if he is in possession of it and it is immediately available to him, intending that it may be used - in the case of a weapon, as a weapon, or in the case of an offensive instrument, for offence. Robbery when armed with a dangerous weapon may be made out even if the offender does not threaten to use or use the weapon. The victim may submit to the theft by fear or force otherwise brought about, but the offence is the more serious if the offender was not only armed but threatened to use or used the weapon. Accordingly, the judge was not in error in regarding either the threatened, or as to the robbery offence on the Form 1 actual, use of a weapon as an aggravating factor.

Para (e) - Commission of offence in company 34 To repeat, the judge took into account in relation to the offence charged in count 1 that it was "committed in company". 35 Section 97(1) is in the terms "whosoever, being armed with an offensive weapon, … or being in company with another person … ". Section 97(2) extends the first limb to being armed with a dangerous weapon. Count 1 in the indictment charged the applicant with robbery "whilst being then armed with a dangerous weapon, to wit, a sawn off shot gun or rifle and in company with Ahmet Hamat and two other persons". 36 The applicant submitted that, the charge including being in company, commission of the offence in company could not be taken into account as an aggravating factor. The Crown submitted that commission in company was "not strictly required for an offence under s 97(2)", and that there was therefore no error in taking into account as an aggravating factor that the offence was committed in company. The Crown further submitted that the offence was committed in company with three other men, that the presence of four men would have instilled greater fear in the victim than if there had been only two men and increased the risk of harm to the victim or a bystander, and that the judge should be taken to have had this in mind in his remarks. 37 Section 97(2) builds upon s 97(1), and incorporates the commission of an offence under s 97(1). The two limbs in s 97(1) can also be cumulative, and the applicant was charged with an offence with the two elements. To repeat, the purpose of the limitation in s 21A(2) was to guard against double counting by increasing the offender's punishment because of something already taken into account by virtue of the conviction. It would be an error in this case to take into account that the robbery was in company. It would still be open to a sentencing judge, in assessing the seriousness of an offence, to conclude that the company of a number of men rather than a few increased the seriousness; this would depend on the facts (see R v Way cited above). But I am unable to conclude that the judge took this approach. He did not explain, and I do not feel able to conclude from the apparent fact that he took into account the factor in para (e) only in relation to the offence charged in count 1, which had multiple companions, that he did more than have regard to the fact that the offence was committed in company as an aggravating factor. In my opinion, there was error in this respect.

Ground 4: The aggravating factor of disregard for public safety 38 The applicant's submission again involved s 21A(2), but in this instance was a little different. To repeat, the judge took into account in relation to the offence charged in count 1 that "[i]t was committed without regard for public safety". The applicant did not submit that disregard for public safety was an element of the offence, but rather that a finding that the offence in count 1 was committed without regard for public safety was not warranted. 39 Mr Khalil and Mr Alhawli were put at risk. Mr Muhieddine was also at risk; according to his statement, which was before the judge on sentencing, one of the men spoke to him as the man was running into the service station, saying "Get out of here" and motioning with his right arm like a push as he did so, and while the men were in the service station he saw one of them looking at him through the window and moved his car to the exit driveway of the service station because he "thought he might come out to me". As the Crown pointed out, there must have been other persons in close proximity to the service station at the time of the robbery, because according to Mr Khalil's statement (also before the judge) a number of people entered the service station and said they had the registration number of the car in which the men left. 40 While the judge did not explain his remark, as was understandable given Mr Stanton's acceptance of the aggravating factors, it was well open to him to consider that there was disregard for public safety, because either during the robbery or as the men left there was a significant potential for harm to members of the public. Mr Muhieddine was in the position of a member of the public. Members of the public could have come to the service station in the ordinary course during the robbery, and also become at risk. One or more of them might have sought to intervene, and so entered into greater danger. The proximity of members of the public, and the potential for their innocent involvement or deliberate intervention during the robbery whereby they were at risk, must have been evident to the applicant, who proceeded nonetheless.

Ground 5: The aggravating factor of a series of criminal acts 41 The applicant's submission again involved s 21A(2), although not the elements of the offence. He submitted that the judge impermissibly took into account the commission of the offences on the Form 1 in aggravation of the offence charged in count 1. To repeat, the judge said that "having regard to the items on the Form 1, count 1 must be seen as one of a series of criminal acts". 42 In R v Tadrosse [2005] NSWCCA 145 it was pointed out that there was error in taking into account the aggravating factor in para (m), "the offence involved multiple victims or a series of criminal acts", when the offender was being dealt with for a number of offences. Howie J, with whom Grove and Hall JJ agreed, said at [28] - [28] His Honour was also in error in taking into account as an aggravating feature s 21A(2)(m) "the offence involved multiple victims or a series of criminal acts". Clearly there were multiple offences before the court and they indicated that there were multiple victims and a series of criminal acts. But the applicant was going to be sentenced for each of those offences and the fact that there were multiple victims and multiple acts of criminality would be addressed by the sentences to be imposed for each of those offences in accordance with the principle of totality. With respect it is illogical to take into account, where there are multiple offences charged, that it is an aggravating factor relevant to each offence that there is a series of criminal acts disclosed by the offences before the court." 43 See also R v Janceski [2005] NSWCCA 288 at [22]-[23]. 44 In R v Salieb [2005] NSWCCA 85 Bell J, with whom Adams and Hall JJ agreed, said - "59 On the hearing of the appeal the applicant's counsel sought and obtained leave to rely on an additional ground arising out of the following remarks in the reasons for sentence: 'As to sub (m), that the offence involved a series of criminal acts, I think it is fair comment to say that the offence of robbery in company and the offences set forth in the Form 1 all involve more than a single act' (ROS 15).

60 In counsel's submission, his Honour erred by wrongly finding the offence charged in count 1 to have been aggravated by the fact that it was one of a series of criminal acts, including the robberies of Suter and Costaglioa. Section 21(2)(m) provides that an aggravating factor of an offence is, relevantly, that it involves a series of criminal acts. The two offences on the Form 1, though closely related in time, involved the commission of separate offences and did not serve to aggravate the offence charged.

61 I am not persuaded that the Judge made the error that is asserted. A fair reading of his remarks suggest the contrary. I understand his Honour to have concluded that the offence charged in the indictment, together with each of the charges taken into account on the Form 1, involved more than a single criminal act. This ground was not further developed and I am not persuaded that the construction for which counsel contended is open." 45 As I understand her Honour, she accepted that there would have been error if the offence of robbery in company had been treated as one of a series of criminal acts of which the offences on the Form 1 were the others in the series; but she considered that the offence of robbery in company had itself involved more than a single criminal act. 46 In R v Tadrosse Howie J also said at [29] - "29 Clearly the aggravating factor in s 21A(2)(m) is concerned with the situation where a single offence contains a number of allegations of criminal acts that are part and parcel of a single course of criminal conduct. A charge of this nature will be frequently found in cases of fraud or dishonesty perpetrated against a single victim such as a charge of embezzlement or larceny as a servant. It is also common to charge multiple instances of supplying drugs over a lengthy period of time as one offence under s 25 of the Drug Misuse and Trafficking Act . Of course there are offences that have, as an element of the offence, multiple acts of criminality, such as an offence of ongoing drug supply under s 25A of the Drug Misuse and Trafficking Act or an offence of persistent sexual abuse of a child under s 66EA of the Crimes Act . When sentencing for such an offence, the court must bear in mind the prohibition against taking into account as a matter of aggravation that which is an element of the offence charged." 47 In that case, in sentencing for multiple offences the judge said that he took into account the matter in para (m), although not explaining how he had taken that and other matters into account in relation to the various offences. Howie J pointed out that the offender was to be sentenced for each of the offences and the multiplicity would be addressed by the sentences to be imposed for each of the offences in accordance with the principle of totality, and said at [28] that it was "illogical to take into account, where there are multiple offences charged, that it is an aggravating factor relevant to each offence that there is a series of criminal acts disclosed by the offences before the court". 48 Section 21A (2)(m) states the aggravating matter that "the offence involved multiple victims or a series of criminal acts" (emphasis added). Possibly the offence charged in count 1 involved other criminal acts, for example possession of unlicensed firearms or malicious damage to stock in the service station. But I do not think that is what the judge had in mind, and of the "items on the Form 1" only the conveyance offence had any link with the robbery on 27 June 2002. I do not think that the stealing offence on 2 February 2002, or even the robbery offence on 24 June 2002, could be seen as criminal acts involved in the offence charged in count 1. It is not an aggravating factor relevant to any offence that the offender committed other offences unless the offence involved the criminal acts the subject of the other offences, and even then the principle of totality governs rather than mutual aggravation. In my opinion, in the present case the judge was in error in this respect. 49 That is not to say that the offences on the Form 1 were to be ignored in the sentencing for the offence charged in count 1. They were to be taken into account in the manner explained in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. The judge did take them into account in that manner. That underlines the error, the vice being double counting in that they were also taken into account in aggravation of the offence charged in count 1.

Ground 6: Discount for assistance to authorities in relation to count 2 50 After considering the applicant's subjective circumstances and some other matters, the judge said - "There is one other matter to which I will refer, but briefly, I have taken this into account in a number of ways. That is, the contents of the envelope which I have sealed, signed and marked 'not to be opened without the order of a judge'. This is a matter in which it is not easy to quantify the appropriate discount. It is not in the ordinary course of events, as one encounters the ordinary course of events, an undertaking to give evidence against offenders engaged in the same criminal activity or, indeed, any other criminal activities. Nonetheless it appears to have been regarded by an authority as being valuable. I have applied, in round terms, a further 25 per cent discount in respect of that element. Nonetheless I should, in order to spell out completely my application of discounts, indicated that were I approaching this crime of 27 June 2002 with the extremely serious matters on the Form 1 I would have commenced with a sentence of 12 years. But there is the 25 per cent for early plea. There is the further discount which I have just identified and in those circumstances the sentence is of course very considerably less. As well, I have found special circumstances." 51 The applicant submitted that, while the further 25 per cent discount had been given in relation to the offence charged in count 1, it was not apparent that the discount had been given in relation to the offence charged in count 2. I do not read his Honour's remarks in that way. From earlier in the judge's remarks on sentence and from the sentencing, the finding of special circumstances applied to the overall sentencing and to the offence charged in count 2. While the judge's indication of commencement with a 12 year sentence was as to the offence charged in count 1, with following reference to the two discounts, he was not indicating a precise discounting in relation to the one offence, let alone the one offence alone. The two discounts totalling 50 per cent were not precisely applied to a commencing sentence of 12 years for the offence charged in count 1, for which an overall sentence of 6 years and 9 months was given. I do not think the judge confined the second discount to the offence charged in count 1.

The grounds overall 52 I have concluded that there was error in the judge taking into account as aggravating factors that the robbery offences involved the threatened use of violence, that the commission of the offence charged in count 1 was in company, and that the commission of the offence charged in count 1 was one of a series of criminal acts. The applicant's counsel was complicit in the generation of error, but the applicant was entitled to be sentenced according to law. 53 The applicant submitted that the errors had materially affected the sentencing. Not as grounds of appeal, but apparently to support the effect of the aggravating factors in increasing the sentences, he said that the commencement of a 12 year sentence to which the judge referred was extremely severe, even with the offences on the Form 1 permissibly taken into account, and he referred to a lesser sentence imposed on Mr Hawat in relation to the robbery of 27 June 2002. Without regard to those matters, I do not think it can be concluded that the judge did not assess the robbery offences as materially more serious because of the aggravating factors erroneously taken into account. This Court has on a number of occasions expressed concern that a sentencing judge has not explained, where it is not sufficiently obvious, how an aggravating factor has been taken into account, see in particular R v Tadrosse at [21]-[24]. The undiscriminating recitation of a check-list of aggravating factors contributes to lack of explanation, and in the present case leaves it that the factors must be taken to have compounded the seriousness.

Consequences of error 54 The Crown submitted that this Court should nonetheless not intervene because in relation to count 1 no lesser sentence was warranted in law. 55 The maximum penalty for the offence of robbery armed with a dangerous weapon or in company (s 97, set out above) is imprisonment for 25 years. The offence charged in count 1 was very serious. There was both a dangerous weapon and the company of three other men. The firearm was deployed by being pointed at Mr Khalil's head, then placed with its end in his back. Mr Khalil said in his statement that he thought he would be shot if he did not do what he was told, and Mr Alhawli was also put in fear. The robbery was planned, and there were the circumstances of disregard for public safety earlier mentioned. The stolen goods were valued at about $5,200. 56 At the time of the offence the applicant was on bail following convictions on 20 June 2002 for driving while cancelled; he was also subject to a community service order imposed on 13 June 2002. The judge noted that he had "a history of familial dysfunction"; his father had been in prison for much of his formative years, and his mother had been unable to control his anti-social behaviour. He was still young at the time of the offences, aged 18, but had an extensive criminal record beginning with resisting and assaulting police (later repeated) and covering many breaking, entering and stealing and serious driving offences. Personal deterrence and community protection called for particular weight attention in the sentencing. 57 The judge gave the 25 per cent discount for an early plea, but later said - "I should add that I have had no evidence from the prisoner himself and there is no mention in Ms Collins otherwise full report of there being any expression or display of remorse or contrition on the part of the prisoner. In any event I am sure he is sorry that he finds himself in the situation which he is. But any remorse or contrition he may feel for what he subjected his victims to would be more than offset in my view by the strength of the Crown case on each of these offences." 58 In these circumstances, a significant period of imprisonment was called for; the seriousness of the offence was high and (apart from the discounts) there was little in the applicant's subjective circumstance weighing against a sentence which took due account of the prescription of a maximum sentence of 25 years imprisonment. 59 Regard to the offences on the Form 1, in accordance with Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, increased significantly the sentence otherwise appropriate. Account was to be taken by giving greater weight to the need for personal deterrence which the commission of the offences indicated, and by giving greater weight to "the community's entitlement to exact retribution for serious offences when there are other offences for which no punishment has in fact been imposed" (at [42]). All the offences heightened personal deterrence and retribution in sentencing the applicant, particularly the robbery offence on the Form 1 which was very serious in itself. 60 Bearing these matters in mind, I am not satisfied that a sentence less severe than that imposed by the judge was warranted in law and should have been imposed: Criminal Appeal Act 1912, s 6(3).

Orders 61 I propose that leave to appeal be granted but the appeal be dismissed. 62 GROVE J: I agree with Giles JA. 63 HOEBEN J: I agree with Giles JA and the orders he proposes. **********

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