HAYEK, Simon v R

Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Rules Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999

Dinsdale (2002) 202 CLR 321 Markarian v Queen [2005] HCA 25; 228 CLR 357 Pearce v R [1998] HCA 57 R v Baker [2000] NSWCCA 85 R v Borkowski [2009] NSWCCA 102 CASES CITED : R v Cahyadi (2007) 168 A Crim R 41 R v Carter [2001] NSWCCA 245 R v MMK [2006] NSWCCA 272 R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 Stewart v R [2009] NSWCCA 152 Vuni v R [2006] NSWCCA 171

PARTIES: Simon Hayek (Applicant) Regina (Respondent)

COUNSEL: J Gordon (Applicant) J Dwyer (Respondent)

SOLICITORS: Mai Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent)

• 12 - IN THE COURT OF CRIMINAL APPEAL 2007/14036

SIMPSON J JOHNSON J McCALLUM J

25 JUNE 2010 SIMON HAYEK v R Judgment 1 SIMPSON J: I agree with McCallum J. 2 JOHNSON J: I agree with McCallum J. 3 McCALLUM J: On 13 February 2008 the applicant, Simon Hayek, was arraigned in the District Court on an indictment that contained one count of aggravated robbery in company, an alternative count of aggravated robbery and one count of larceny. He pleaded guilty to the alternative count of aggravated robbery and to the count of larceny. The Crown accepted those pleas in full satisfaction of the indictment. 4 The offence of aggravated robbery carried a maximum penalty of 20 years' imprisonment under s 95 of the Crimes Act 1900. The circumstance of aggravation was the intentional infliction of actual bodily harm. In dealing with that offence, the Court also took into account an offence of "break, enter and steal" contrary to s 112(1) of the Act, in accordance with s 33 of the Crimes (Sentencing Procedure) Act 1999. The offence of larceny carried a maximum penalty of five years' imprisonment under s 117 of the Act. 5 On 29 August 2008, the applicant was sentenced for those offences as follows:

(a) for the offence of larceny, to a fixed term of imprisonment for 18 months to commence on 23 March 2007 (the date on which the applicant was arrested);

(b) for the offence of aggravated robbery, to a term of imprisonment with a non-parole period of 4 years and 6 months commencing on 23 September 2007 and expiring on 22 March 2012 and a balance of term of 3 years expiring on 22 March 2015. 6 The total effective sentence was accordingly eight years' imprisonment with a non-parole period of five years.

The need for an extension of time 7 The applicant gave notice of his intention to apply for leave to appeal against sentence within 28 days after the sentences were imposed, as required by s 10(1)(a) of the Criminal Appeal Act 1912. According to the Crown submissions (which were not disputed), that notice was filed on 24 September 2008 and expired on 23 March 2009. The applicant was required to file the notice of application for leave to appeal within that period: rule 3B of the Criminal Appeal Rules. That did not occur. 8 An affidavit affirmed by the solicitor for the applicant discloses that an extension of time was then granted retrospectively, giving the applicant until 24 July 2009 to file the notice, and still it was not filed. A second application for an extension of time made on 6 August 2009 was refused by the Registrar. 9 The notice of application for leave to appeal was ultimately filed on 11 February 2010. I dismiss as disingenuous the suggestion made by the solicitor for the applicant in her affidavit that more than six months was required for that to occur "due to the nature and complexity of the appeal". The only serious basis put forward for seeking the extension of time is abject delay on the part of the applicant's legal representatives. As unsatisfactory as that explanation is, however, I do not think the sanction for their conduct should be visited upon the applicant. In my view, the time within which notice of the application for leave to appeal may be given should be extended to 11 February 2010 so as to enable the application for leave to be considered on its merits.

Facts of the offences 10 The offences occurred when the victim attended the home of the applicant to collect the applicant's girlfriend, Ms Labour. The victim was then aged 61 years. Ms Labour was considerably younger, and had been in a relationship with the applicant for several months. 11 The victim had first met Ms Labour about two years earlier when she was working as a prostitute. He had paid her for sexual services on a number of occasions over a period of several months, but had then lost contact with her. About six weeks before the offences, Ms Labour contacted the victim and they resumed a relationship of sorts, which appears then to have involved something more than only the provision of sexual services. Ms Labour told the victim during that period that she had a drug problem and he tried to help her to find a rehabilitation clinic. 12 On 21 March 2007 Ms Labour called the victim and asked him to come and see her. When he arrived at the place where she was staying, she joined him in his car and asked him to take her away from there, telling him that she had taken some pills. He told her that he was fed up and that he would not help her anymore. 13 The applicant and Ms Labour had at that time been living together for about six weeks. When the applicant saw Ms Labour in the car with the victim, he approached them and began arguing with Ms Labour. Ms Labour and the victim then got out of the car and she continued to argue with the applicant, attracting the attention of neighbours. They were joined by a friend of the applicant, Mr Hassan Marouche. He suggested that they take their argument inside and asked the victim to accompany them. 14 Once inside the applicant's apartment, the applicant and Mr Marouche set upon the victim, punching him to the face and head. The applicant took the victim's wallet containing $600 and cards from his back pocket and his mobile telephone from his belt. The victim got to his feet, whereupon the applicant and Mr Marouche pushed him into the kitchen sink. Something in the sink cut his forearm and it later required three stiches. 15 After a struggle during which the victim was hit on the back of the head and fell to the ground, the victim got out of the apartment block and went to a pub on the corner where he asked someone to call police. Unwisely, he then got a spanner from his car and went back to the apartment, where he kicked the door open. He found the applicant and Mr Marouche searching through his wallet. They began punching him again and he tripped over and dropped the spanner. He ran from the premises and the spanner was thrown at him. 16 Ms Labour was at that time standing beside the victim's car. She smashed the passenger front window open and crawled inside to open the boot. The applicant then stole the victim's computer (valued at $4000) and a briefcase from the boot. The briefcase had inside it a diamond ring (valued at $2500) which the victim had bought as an anniversary present for his wife. 17 The victim suffered reasonably serious injuries. Apart from some cuts, abrasions and swelling to the face, one of his front teeth was knocked out. He had the cut to the left arm which required stitching and two cracked fractures of the nose, a fracture of the right maxilla and a small retinal tear in the right eye.

Subjective features of the applicant's case 18 The applicant was 23 years old at the time of the offences and 24 at the time of sentence. He completed secondary education to year 11, after which he completed most of an apprenticeship as an air conditioning technician. 19 The applicant had a history of drug abuse and a criminal record which included two offences of armed robbery in 2002 (dealt with in the Children's Court). A pre-sentence report tendered at the sentence hearing recorded the applicant's upbringing as being "turbulent" following his parents' separation when he was nine. The report stated that the applicant had used heroin daily from 2004 to 2006. He then voluntarily went into detoxification. He had a period of abstinence from drug use after extensive counselling, but had lapsed into using illicit substances again shortly before committing the present offences. 20 A report by a psychologist, Mr Taylor, tendered at the sentence hearing provided further detail of the applicant's previous attempts to overcome his drug addiction. Mr Taylor noted that the applicant had completed the MERIT programme, which runs for 13 weeks, in early 2007. The present offences were committed about a month later. Based on tests conducted with the applicant, Mr Taylor concluded that the applicant has a moderate risk of recidivism. However, having regard to the support of the applicant's family and his apparent motivation for change, Mr Taylor concluded that the applicant has "quite good prospects for rehabilitation". 21 At the time of the present offences, the applicant was on bail for an offence of having custody of a knife in a public place and a number of dishonesty offences. He was arrested on the present matters on 23 March 2007 and was refused bail thereafter. He was subsequently sentenced for the offences for which he had been on bail (on 31 May 2007) and, following a successful severity appeal, is to be taken to have served four months' imprisonment backdated to 23 March 2007 referable to those matters. 22 The sentence imposed on the larceny count in the matters presently before the court was also backdated to 23 March 2007. Accordingly, that sentence has been served partly concurrently with the sentences imposed for the dishonesty offences and the knife offence.

The sentencing judge's remarks on sentence. 23 The applicant gave evidence at the sentence hearing that he had been in a serious relationship with Ms Labour for four or five months at the time of the offences. He had come to know that she had been working as a prostitute and did not wish her to continue that work. Ms Labour had a severe drug problem and had been working as a prostitute in order to fund that addiction. 24 The applicant said that, when he saw Ms Labour in the car with the victim, he suspected the victim was an old client of hers and became very upset. The applicant said that he was further upset by the victim's action in coming inside with them. He felt that the victim had invited himself into the flat. As already noted, it was in fact the co-offender, Mr Marouche, who invited the victim in. 25 The sentencing judge rejected the suggestion that the applicant was provoked by the victim's decision to join them in the flat. Her Honour found that the offence was an "unwarranted, unprovoked and cowardly assault upon an innocent older man." She did accept, however, that very little planning was involved in the commission of the offence. Her Honour noted that the victim's injuries were serious and that the offences were committed whilst on bail. 26 The sentencing judge allowed a discount in the order of 20% to reflect the utilitarian value of the applicant's pleas of guilty. Her Honour also appears to have accepted that the plea reflected remorse. Her Honour accepted that the applicant had taken steps to address his drug addiction but noted also that the applicant had relapsed into drug use and that was one of the reasons for the commission of the offences. In those circumstances, her Honour's assessment of the applicant's prospects of rehabilitation was guarded. 27 Her Honour was satisfied that there was a need for extended supervision upon release, apparently on the basis of the need to address the drug addiction. On that basis and having regard to the fact that there would be some accumulation of the sentences, her Honour found special circumstances warranting an adjustment of the statutory ratio between the non-parole period and the balance of term.

Grounds of appeal 28 Leave is sought to appeal against the sentences on the following grounds:

(1) that the sentences are, individually or in total, manifestly excessive;

(2) that the sentences passed should not have been accumulated to the extent that they were, or at all.

Additional "errors" complained of 29 In addition to those two grounds, the applicant complained of a number of additional alleged errors on the part of the sentencing judge that were not articulated in any ground of appeal. In particular, it was contended in written submissions prepared by counsel for the applicant that the sentencing judge was in error in that she: (i) failed to make or to make clear, any finding as regards the prospects for the applicant to be rehabilitated despite the fact that he gave evidence about it, a certificate of a drug and alcohol course completion was tendered, and that it was referred to in the psychologist's report (Mr John Taylor); and (ii) failed to make or to make clear any finding as regards the level of contrition expressed and/or felt and/or manifested by the applicant. 30 No application was made at the hearing in this Court to rely on any additional ground of appeal on that basis. In any event, I do not think there is any substance in those additional complaints. As to the applicant's prospects of rehabilitation, the sentencing judge said (referring to both the applicant and his co-offender): It really is in their own hands. If they are genuine in what they have told the court, and they also take advantage of the services available to them whilst they are in custody and comply with supervision when they are released on parole, one would expect their prospects to be good. As well, that would have a direct effect upon the likelihood of them re-offending. 31 On the evidence before the sentencing judge, including the applicant's own evidence that he had voluntarily undertaken drug rehabilitation but had relapsed shortly before the commission of the present offences, a qualified finding as to the applicant's prospects for rehabilitation was plainly open. 32 As to the contention that the judge failed to make any clear finding as to the level of contrition, her Honour expressly referred to a submission that the plea reflected the applicant's remorse. Her Honour said "I have regard to those submissions". 33 The vice said to flow from the alleged failure to make or articulate findings on the two issues identified is that the sentences passed did not have or appear to have "any or any sufficient allowance for the applicant's contrition or for … efforts towards his rehabilitation". The contention that the judge did not give any allowance for those matters is unsustainable, having regard to her Honour's remarks on sentence identified above. As to whether "sufficient allowance" was made for those matters, the difficulty in establishing such a ground is well recognised. As noted by Spigelman CJ in R v Baker [2000] NSWCCA 85: "Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of 'weight' will justify intervention by an appellate court are narrowly confined" (at [11]; Grove and Hidden JJ agreeing). I am not satisfied that error is demonstrated in the present case. 34 Separately, it was submitted that the sentencing judge fell into error in respect of her application of the discount of 20% to reflect the utilitarian value of the plea. That submission appears to be based on an inference drawn from a series of mathematical calculations. The applicant's written submissions note that the calculation of the undiscounted sentence by reference to the total sentence of eight years with a non-parole period of five years is "an easy and superficially attractive mathematical calculation", giving a starting point of ten years, whereas the same calculation applied to the individual sentences imposed gives an "unlikely figure" of nine years and 138.666 days as the undiscounted sentence. On that basis, the court is invited to infer that the discount must have been applied, if at all, to the aggregate sentence, contrary to the approach required by the principles stated in Pearce v R [1998] HCA 57. 35 The difficulty with that submission is that it elevates the guidance to be derived from the principles stated in R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383 to a mathematical formula. As noted in the same context in R v Borkowski [2009] NSWCCA 102 at [33], the High Court has stated that there should be limited use of "arithmetical deduction" in determining an appropriate sentence: Markarian v Queen [2005] HCA 25; 228 CLR 357 at [39]. 36 The sentencing judge may be assumed to have had such considerations in mind when her Honour indicated that the appropriate discount was "in the order of" 20%. The imposition of discounted sentences in round figures is unsurprising in those circumstances. I am not satisfied that there was any error in that respect.

Ground 1 - whether manifestly excessive 37 The principles to be applied in determining whether a sentence is manifestly excessive are well known. As noted in the written submissions on behalf of the Crown, the task is not for this Court to decide whether it would have exercised its discretion differently. The applicant must demonstrate that the sentence was "unreasonable or plainly unjust": Vuni v R [2006] NSWCCA 171 at [33], citing Dinsdale (2002) 202 CLR 321 at 325; endorsed in Stewart v R [2009] NSWCCA 152 at [16] - [17]. 38 The principal contention relied upon in support of the ground that the sentence for aggravated robbery was manifestly excessive is that the sentencing judge did not refer to the guideline judgment of this Court in R v Henry [1999] NSWCCA 111; 46 NSWLR 346. That decision determined that the sentence imposed for an offence of armed robbery contrary to s 97 of the Crimes Act 1900 characterised by identified features should fall within the range of four to five years' imprisonment. The features identified for the purpose of that guideline were:

(1) a young offender with no or little criminal history;

(2) a weapon like a knife, capable of killing or inflicting serious injury;

(4) limited, if any, actual violence but a real threat thereof;

(5) a victim in a vulnerable position such as a shopkeeper or taxi driver;

(7) plea of guilty, the significance of which is limited by a strong Crown case. 39 It was submitted on behalf of the applicant that his level of criminality in respect of the offence against s 95 of the Crimes Act to which he pleaded guilty falls within the range suggested by the guideline judgment. I do not agree. As submitted by the Crown, a number of features distinguished the present case from the characterising features in the "Henry" guideline. In particular:

(a) In the present case, there was not only a substantial degree of actual violence but also the infliction of actual bodily harm which was relatively serious. Although the intentional infliction of actual bodily harm was an element of the offence in the present case, it must be accepted, as submitted by the Crown, that the injuries sustained by the victim were at the highest level of objective seriousness within the category of actual bodily harm.

(b) The guideline judgment assumes that the offender is young and has little or no criminal history. The applicant in the present case was well into his adult years at the time of the offence and had two prior convictions for armed robbery, together with a number of other convictions.

(c) The characterising features of the guideline judgment assume a small amount taken whereas the value of the goods stolen by the applicant was substantial. It must be noted, however, that the most valuable goods were the subject of the separate count of larceny. 40 It must also be borne in mind that the sentencing judge was required to adjust the sentence on the aggravated robbery offence to reflect the Form 1 matter, which was itself a serious offence. 41 Separately, the applicant relied on the statistics provided by the Judicial Commission for sentences imposed for a range of robbery offences under ss 94-98 of the Crimes Act. Counsel for the applicant noted that those statistics show "a mid-point" of 42 months with a non-parole period of 18 months for an offence against s 95(1). He submitted, further, that those statistics demonstrate that the actual practical sentences passed by the courts are, in general, less than the sentence imposed for the matter now before the court. 42 It is not enough for an applicant to establish that a sentence does not fall within the middle of a pattern of statistics. As already noted, the critical question is whether the sentence under appeal was unreasonable or plainly unjust. I am not satisfied that it was. The offence was undoubtedly serious. A starting point at or just below the mid-point of the sentencing range (up to a maximum of 20 years) was not outside the realm of the judge's sentencing discretion. As to the larceny offence, the sentence was plainly within the proper range.

Ground 2 - accumulation 43 The applicant submitted that the circumstances of the aggravated robbery and the larceny were so proximate and interrelated as to fall within the description of Howie J in R v Carter [2001] NSWCCA 245 at [21], where his Honour said: Further, the two offences, although different acts of criminality, were part of the same course of conduct in that they were similar offences, occurred within a period of about two weeks and were a result of the same set of circumstances, being the applicant's drug addiction. It was not as if the applicant had been arrested for one offence and then committed the other while on bail. There was, in my view, nothing to warrant the accumulation of the punishment for each offence. This was a simple case in which the overall criminality could easily be accommodated in the penalty appropriate for the second offence, taking into account that it was committed while on parole, it had other aggravating features and was not an isolated act of criminality. 44 The Crown drew the Court's attention to the remarks of Howie J in R v Cahyadi (2007) 168 A Crim R 41, where his Honour said at [27] (Adams and Price JJ agreeing): In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. 45 As explained in the following paragraphs of that judgment, the determination as to the appropriate degree of accumulation, if any, is discretionary but the discretion is one which is circumscribed by the requirements of the totality principle: at [28] to [30]. 46 It may be accepted that it would have been open to the sentencing judge to take the view that the sentence for the aggravated robbery offence comprehended and reflected the criminality of the larceny offence. The critical task, however, is to determine whether it was open to her Honour to assess the total criminality of the two offences as she did. Unless it can be concluded that the degree of accumulation imposed was not a proper application of the principle of totality, this Court should not interfere with the sentences imposed. 47 The larceny offence was committed against the same victim and, in my view, constituted part of the same incident, but that is not determinative: see R v MMK [2006] NSWCCA 272 at [13]. The aggravated robbery was a violent attack within the applicant's flat. The subsequent theft of a valuable computer and the victim's briefcase from his car was capable of being regarded as contributing separately to the overall criminality involved in the two offences. Accordingly, although I would accept that the applicant was not afforded any great measure of leniency, it cannot be said that it was not open to the sentencing judge to accumulate the two sentences to the extent of six months. In those circumstances, it would not be appropriate for this Court to intervene. 48 The orders I propose are:

1. That the time within which the notice of application for leave to appeal may be filed be extended to 11 February 2010.

2. That leave to appeal against sentence be granted. 3. That the appeal be dismissed.

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