Jehad Jodeh v R

Court of Criminal Appeal (NSW)|2011-02-16|Before: McClellan CJ, Johnson J, McCallum J

Judgment 1McClellan CJ at CL: I agree with McCallum J. 2Johnson J: I agree with McCallum J. 3McCallum J: This is an application for leave to appeal against the sentences imposed upon Mr Jehad Jodeh after he pleaded guilty in the District Court to three offences of robbery armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 and one offence of maliciously inflicting grievous bodily harm contrary to s 35(1)(b) of the Act (as it stood in December 2006). The maximum penalty for the offence of armed robbery is 25 years imprisonment. The maximum penalty in respect of the charge of maliciously inflicting grievous bodily harm was 7 years imprisonment. At the time of the offences, there was no standard non-parole period prescribed for either offence. 4Mr Jodeh was sentenced to the following terms of imprisonment: (a) for the first offence of armed robbery, to a fixed term of imprisonment of four years commencing on 24 September 2007 and expiring on 23 September 2011; (b) for the second offence of armed robbery, to a fixed term of four and a half years imprisonment commencing two years into the first sentence, that is, on 24 September 2009 and expiring on 23 March 2014; (c) for the charge of maliciously inflicting grievous bodily harm, to a fixed term of imprisonment of two years commencing three years into the second sentence, that is, on 24 September 2012 and expiring on 23 September 2014; (d) for the third armed robbery offence, to a term of imprisonment with a non-parole period of five years commencing one year into the third sentence, that is, on 24 September 2013 and expiring on 23 September 2018. The balance of term for that offence was five years, giving a total sentence of 10 years imprisonment. 5The effect of the sentences is that Mr Jodeh is to commence serving the non-parole period of the last sentence six years after the commencement of the first sentence. The total effective non-parole period is accordingly 11 years imprisonment and the total effective sentence is 16 years imprisonment. 6In passing sentence for the charge of maliciously inflicting grievous bodily harm, the learned sentencing Judge took into account a charge of possessing ammunition without a licence or permit on a "Form 1" in accordance with the procedure contemplated in s 33 of the Crimes (Sentencing Procedure) Act 1999. A second Form 1 listed an offence of knowingly being carried in a stolen conveyance, which the Judge took into account when sentencing Mr Jodeh for the third armed robbery offence.

Facts of the offences 7All of the offences were very serious. The first armed robbery was committed on 9 October 2006 in the car park of a McDonald's restaurant at Enfield. The victim was a cash-in-transit security guard. He was in plain clothes and was using his own private car. He had collected $29,000 in cash from the manager of the restaurant and had returned to his car when he saw in his rear view mirror a yellow motorbike with a rider and a pillion passenger. The rider was the applicant. The pillion passenger was a man by the name of Abdul Baghdadi. 8Mr Baghdadi was armed with a .38 calibre, long-barrelled revolver. He went to the driver's side door and demanded the money, pointing the firearm at the security guard. The judge at first instance sentenced the applicant on the basis that he was in joint possession of the firearm, but accepted that the first he knew of it was when it was presented to the victim by Mr Baghdadi. The offenders left the scene on the motorbike. They were observed later that day under police surveillance buying a large amount of shoes and clothes at Westfield Shopping Centre in Parramatta. 9The second armed robbery was committed two days later. The applicant and Mr Baghdadi went together to a BP service station, again on the yellow motorbike. They went to a GM Cab office located within the service station, where Mr Baghdadi pointed a revolver over the counter and discharged a round into the office area. Mr Baghdadi yelled at the victim to open to the door, which the victim attempted to do, without success. Mr Baghdadi then discharged three or four further rounds into the door. He again demanded that the victim open the door, which the victim again was unable to do. Finally, Mr Baghdadi kicked the door open and took $17,000 in cash from the office, together with a number of cab-charge and credit card dockets. The applicant was standing in the doorway to the office area throughout. The offenders left on the yellow motorbike. 10In respect of the second offence, the Judge sentenced the applicant on the basis that he knew, prior to the robbery, that Mr Baghdadi was in possession of a firearm. His Honour was not, however, satisfied beyond reasonable doubt that the applicant knew, before it was fired, that the firearm was loaded. 11The third offence in order of time was the offence of maliciously inflicting grievous bodily harm, which was committed on 27 December 2006. At about 4.45 am that day, the offender and four unknown males described as being "of Islander and Middle Eastern appearance" attempted to force entry to a nightclub by barging past the doorman. When the doorman tried to stop them, they set upon him, punching him to the head and body many times. 12About 20 minutes later, the applicant and two of the males from the earlier incident returned to the nightclub, where they again attacked the doorman. On the second occasion, while the doorman was being punched to the head and body by the other two men, the applicant ran in from 3 or 4 metres away and began kicking the doorman to the body. His acts were captured on CCTV footage, which clearly depicted him and both other men punching and kicking the doorman. As a result of their punches and kicks, the doorman was knocked to the ground and was unconscious for a number of seconds. He sustained serious injuries including a punctured lung that required surgery, fractured ribs, a fractured nose, a damaged kidney and bruising and swelling to the head. He was admitted to hospital for a period of two and a half weeks. 13The Form 1 offence taken into account in the sentence passed in respect of the offence of maliciously inflicting grievous bodily harm related to two rounds of ammunition found by police in a drawer in the applicant's bedroom when they executed a search warrant on 18 January 2007. 14The applicant was arrested on 29 January 2007 after voluntarily attending Kings Cross police station in relation to the assault on the doorman at the nightclub and the offence of possessing ammunition. He was granted bail the following day. On 31 January 2007, he was arrested in relation to the first two offences of armed robbery. He was again granted bail the following day. 15It follows that the fourth offence (the third armed robbery) was committed whilst the applicant was on bail for the other three. The circumstances of the fourth offence are the most serious of all. On 10 September 2007, the applicant and two others robbed a security guard while he and another guard were returning to an Armaguard van with sealed security bags containing $72,241 in cash. The three offenders were in a van which had been stolen, giving rise to the second Form 1 offence. One of the men remained in the driver's seat of the van. The other two got out of the van. Each was armed and was wearing a balaclava. One of the armed men held a gun to the side of the security guard's face. At some point, one of the firearms was discharged but fortunately, the security guards sustained only minor injuries. 16Police were called immediately and recovered the stolen van. DNA recovered from items found in the van identified all three offenders. The Crown could not say which of the three men was the applicant. The Judge was satisfied to the requisite standard that the applicant knew there was a firearm in the possession of at least one of his co-offenders but was not satisfied beyond reasonable doubt that the applicant knew the firearm was loaded.

Subjective circumstances of the offender 17The applicant was aged 18 at the time of the first three offences and 19 at the time of the fourth offence. He had no prior convictions. There was evidence before the court that he had enjoyed a good education and a strong family upbringing. 18The applicant's case on sentence was that his previously happy life had taken a severe downhill turn after he was involved in a motorbike accident at the age of 17. He suffered serious injuries as a result of that accident including a fractured leg, injuries to the back and evidently some damage to one knee. He had been in hospital for nine days following the accident and had undergone a series of surgical procedures then and later. 19The applicant did not give evidence at the proceedings on sentence. He wrote a letter to the court in which he stated that the motorbike accident left him very confused and disoriented, causing him to suffer from depression, anxiety and mental and physical pain. This, he said, had led to the use of marijuana, cocaine and ice, which led him to a path of crime. 20Those contentions were supported by a letter from the applicant's older sister who was made available for cross-examination but was not cross-examined. At the time of writing to the court, she had completed a degree in psychology. She stated that, prior to the accident, the applicant had been vibrant, funny and friendly and had a high sense of morals and religion. She said that, after the accident, his personality slowly began to change. She said that he could not tolerate the pain he was in and that his prescribed medication (200 gm of Tramal three times a day) was not working for him. 21Apart from a series of highly favourable character references, there was also tendered at the hearing a report from a psychiatrist, Dr Bruce Westmore, and a report of a psychologist, Mr Chris Probets. 22Dr Westmore's report had been prepared for the purpose of Mr Jodeh's civil proceedings arising out of the motor vehicle accident, but he expressly referred to the connection between those events and the present offences. Dr Westmore said: I also expressed the view that [the applicant's] criminal legal team should be alerted to the fact that I am of the opinion that the motorbike accident is likely to have had a significant impact on his mood state prior to the offending behaviour and the offending behaviour may have been influenced in a significant way because of his depression and his illicit drug use. I note his history that he had no problems with the police prior to the motorbike accident and he denies absolutely using any illicit drugs prior to the motorbike accident. These are matters which are likely to be highly relevant to any sentencing court. 23Dr Westmore concluded that the applicant was developing psychological and psychiatric injuries following the motorbike accident. He expressed the view that the accident would have had an impact upon the applicant because it affected his capacity to work and he also developed symptoms of pain leading to the use of illicit drugs, which would have adversely affected his mood. 24The psychologist, Mr Probets, agreed with Dr Westmore's conclusion. He said: I agree entirely with Dr Westmore on both grounds that Jehad Jodeh's mental state at the time of the offences was closely tied to, and is probably entirely due to, the combination of his difficulty controlling his mood swings and particularly his depression following the motorcycle accident and his illicit drug use that occurred as a result of this motorcycle accident and the resulting pain and disabilities. While the drugs enabled Jehad Jodeh to reduce his pain and gain some control over his moods, it also reduced his ability to make sound and rational judgements and decisions. I also agree that he does not have an antisocial personality disorder and, in my opinion, this makes the possibility of re-offending much less likely.

Ground 1: relevance of the motorbike accident in assessing moral culpability 25The first ground of appeal is: His Honour, when determining the objective seriousness of the offences, erred in failing to give sufficient weight, if any, to the fact that the offending was motivated by a drug addiction, which was caused by an event for which the applicant was not primarily responsible. 26The Judge said: I am unable to see how the offender's deliberate decision to resort to the use of illicit drugs to manage pain reduces, to any significant extent, his culpability in the commission of these serious armed robbery offences. 27Separately, his Honour accepted that the applicant's drug use did contribute to his offending in that it clearly affected his judgment. However, his Honour reiterated his view that it did not reduce his criminal responsibility to any significant degree. 28It was acknowledged on behalf of the applicant that the circumstances in which an addiction to drugs will be a mitigating factor are limited. It was submitted, however, that the applicant fell into the "rare category" described by Wood CJ at CL in R v Henry (1999) 46 NSWLR 346 at [273]: It may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it might: ... (ii) suggest that the addiction was not a matter of personal choice, but was attributable to some other event for which the offender was not primarily responsible, for example, where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness or surgery ... or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete. 29In my view, it was open to the sentencing judge to conclude that the circumstances revealed in the evidence relied upon by the applicant did not fall within that category. It must be borne in mind that his Honour was not determining a question of causation of the kind that arises in a civil claim. The task was to assess the moral culpability of the offender's conduct in the commission of a criminal offence. That is very much a question within the judgment of a sentencing judge. 30It may be accepted that the consequences of the motorbike accident inflicted pain and hardship on the applicant and one could readily conclude that the accident was, in that sense, a contributing factor in the development of the addiction. 31The applicant's submissions put the matter considerably higher than that, contending that "it was only in the use of prohibited drugs that the applicant was able to seek refuge". The evidence did not sustain that contention. In that respect there is force, in my view, in the contention put by the Crown that the absence of any evidence from the applicant himself was significant. 32Particularly (in light of the applicant's decision not to give evidence) there was little basis on which the Judge could assess the extent to which the applicant was troubled by pain on a regular basis in the period leading up to the offences. He was evidently able to ride a motorbike on the days of the first two armed robberies. There was no evidence that he made any attempt to address the issues of pain and depression with professional assistance and legally-prescribed drugs. Although the letter from the applicant's sister identified the drug he had been prescribed, and asserted that it did not provide adequate pain relief, there was no ability for the Judge to assess the strength of those contentions. 33The inference it is contended the Judge ought to have drawn is that the pain was so great that the applicant's ability to exercise appropriate judgment whether to adopt the habit of taking illegal drugs was "incomplete". In my view, that inference was barely open on the evidence put before the Judge, and it certainly cannot be concluded that it was the only inference available. It was plainly open to the Judge, in my view, to reject the proposition that the applicant was deprived of free will in the circumstances. His Honour did not overlook the relevant evidence. He considered it carefully, and rejected the conclusion contended for. I see no error in that approach. Ground 1 must be rejected.

Ground 2: parity 34The second ground of appeal relied upon by the applicant is: The applicant has a justifiable sense of grievance in light of the sentence imposed upon the co-offender Abdul Baghdadi. 35Mr Baghdadi and the applicant were co-offenders in respect of the first two armed robberies. The principle of equal justice requires that there should not be, as between them, a marked disparity such as to give rise to "a justifiable sense of grievance": Postiglione v The Queen (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ. 36On 18 December 2007, Mr Baghdadi was sentenced by Ellis DCJ for a slate of offences including the first offence under consideration in the present appeal (the McDonald's robbery). He was also sentenced for a number of offences which did not involve the applicant. The individual sentence imposed upon him for the McDonald's robbery was a term of imprisonment of six years with a non-parole period of three years and six months. That sentence was subsequently increased following a successful Crown appeal to a term of imprisonment of seven years with a non-parole period of four years: R v Baghdadi [2008] NSWCCA 239 at [63] per McClellan CJ at CL, R S Hulme and Hidden JJ agreeing at [64] and [69] respectively. 37The applicant was sentenced on 13 May 2009, after the decision of the Court of Criminal Appeal. The sentence imposed upon the applicant for the McDonald's robbery was a fixed term of imprisonment of four years. In the case of a fixed term, the appropriate comparator is the non-parole period imposed on Mr Baghdadi: R v Dunn [2004] NSWCCA 346 at [161], cited with approval in Hristovski v R [2010] NSWCCA 129 at [65] per Johnson J. The sentences are accordingly to be regarded as being the same. 38For the second offence (the GM Cabs robbery), the applicant was sentenced to a fixed term of four years and six months commencing two years after the commencement of the term imposed in respect of the first count. Mr Baghdadi had not been sentenced for that offence at the time sentence was passed on the applicant. He was sentenced for that offence (again together with other offences not involving the applicant) by Armitage DCJ on 21 August 2009. The sentence imposed for the GM Cabs robbery was a term of imprisonment of nine years with a non-parole period of five years. I did not understand the applicant to contend that there was marked disparity between the sentences imposed on the two offenders for that offence. 39In sentencing the applicant for the McDonald's robbery, the Judge accepted that Mr Baghdadi's involvement was objectively more serious than that of the applicant, since Mr Baghdadi was the person in possession of the firearm and, plainly, the person who brought it to the scene of the robbery. 40The Judge rejected a submission on behalf of the applicant that Mr Baghdadi's subjective case was not as strong as the applicant's. His Honour noted that, unlike the applicant, Mr Baghdadi had a significant cognitive deficit and a deprived upbringing without the advantages of family support enjoyed by the applicant. His Honour accepted, as submitted on behalf of the Crown, that looking at both cases objectively and subjectively, the two were comparable. I do not think it has been demonstrated in this appeal that his Honour's conclusion was not open to him. 41It must also be borne in mind that Mr Baghdadi was given a discount for an early plea of 25% in respect of the McDonald's robbery, whereas the applicant entered his plea at a later point and received a discount of only 15%. Further, as acknowledged on behalf of the applicant, the principle of double jeopardy would have caused this Court to exercise restraint in re-sentencing Mr Baghdadi following the successful Crown appeal. 42In all the circumstances, I am not persuaded that the sentence imposed upon the applicant for the McDonald's robbery is such to give rise to a justifiable sense of grievance on account of the sentence imposed upon Mr Baghdadi for the same offence. 43Separately, the applicant sought to mount an argument as to disparity by reference to the aggregate sentences imposed on each offender. As the matters recited above reveal, however, the circumstances of each are too different to yield any sensible comparison. In particular, the principle of totality would have operated very differently in respect of each offender. 44In my view, ground 2 must fail.

Ground 3: extra-curial punishment 45The third ground of appeal relied upon by the applicant is: His Honour failed to give sufficient weight to the fact that the applicant would suffer extra-curial punishment, due to the effect his conviction would have upon his ability to recover damages in respect of his motorcycle accident. 46This ground of appeal was based on the fact that, prior to the time of his sentencing, the applicant had retained solicitors to commence civil proceedings for damages arising from the motorbike accident, including damages for future economic loss. It was submitted at first instance that the sentencing Judge ought to have taken into account, as extra-curial punishment, the fact that the applicant's incarceration would diminish his ability to recover such loss. 47The Judge rejected the submission. His Honour said: It is clear that any such economic loss suffered by the offender was brought upon the offender directly by his deliberate decision to embark upon a serious course of criminal offending, knowing that he had civil proceedings pending. Those civil proceedings involving a claim for damages for injuries including a claim for future economic loss. Whilst I am prepared to allow some amount of mitigation for this factor, that mitigation must in the circumstances be minimal. 48In my view, this ground is misconceived and it is doubtful whether the applicant was entitled even to the minimal amount of mitigation allowed by the judge on that account. 49As noted on behalf of the applicant, the principle which allows extra-curial punishment to be taken into account in mitigation of an otherwise appropriate sentence was explained in R v Hannigan (2009) 193 A Crim R 399 at [25] per Chesterman JA as follows: [T]he theory which underlies the relevance of extra-curial punishment to sentence is that it deters an offender from re-offending by providing a reminder of the unhappy consequence of criminal misconduct, or it leaves the offender with a disability, some affliction, which is a consequence of criminal activity. In such cases one can see that a purpose of sentencing by the court, deterrence or retribution, has been partly achieved. 50The attempt to characterise the loss of an entitlement to a component of damages in the civil proceedings as extra-curial punishment misconceives the nature of an award of damages in personal injury proceedings. Although such an award comes as a lump sum, its purpose is to compensate an injured person for future loss caused by the negligence of the defendant. It remains open to the applicant to contend in the civil proceedings that the motorbike accident caused the commission of the present offences. For that reason alone, the existence of any extra-curial punishment has not been determined. 51However, even if the applicant is awarded a lower amount for future loss of income as a result of having been in prison rather than in the community earning money for the period of his sentence, I think it is wrong to characterise the consequential reduction in any award of damages in the civil proceedings as extra-curial punishment. It would simply mean that the amount of compensation to which he was entitled was less because the future loss was less. The absence of an entitlement to compensation does not, in my view, amount to punishment. Ground 3 must be rejected.

Grounds 4 and 5: accumulation and manifestly excessive sentence 52It is convenient to consider the fourth and fifth grounds of appeal together. They are that his Honour erred in accumulating the individual sentences to the extent provided for in his Honour's judgment and that the sentence imposed upon the applicant was manifestly excessive. 53The applicant submitted that, putting aside his complaints about the individual sentences imposed, the sentence arrived at through the process of partial accumulation resulted in a sentence which was excessive. 54As already noted, his Honour allowed a total period of six years' accumulation. The sentence imposed in respect of the third armed robbery was almost wholly consecutive upon those imposed in respect of the first three offences, overlapping by one year. The applicant submitted that the degree of accumulation added considerably to the severity of the sentences and was not warranted. It was submitted that the total sentence imposed will have a crushing effect upon the applicant and so in fact be counter-productive to the objects of sentencing. 55There is authority to support the proposition that the totality principle should be applied so as to obviate the imposition of a "crushing" sentence. In R v MAK (2006) 167 A Crim R 159 at [17], the Court said: [One] matter that is considered under the totality principle is the proposition that an extremely long total sentence may be "crushing" upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. 56The applicant also relied upon the remarks of King CJ in R v Rossi (Court of Criminal Appeal, SA 20 April 1988, unreported) (cited with approval in Kelly v R (1992) 33 FCR 536, 541 per O'Loughlin J): There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect. 57The principle calls for a judgment as to the likely effect on the offender of the total sentence imposed, taking into account the circumstances of the individual case and having due regard to the objects of sentencing. Plainly, there will be cases in which, although the effect of the sentences imposed may readily be viewed as being likely to have a crushing effect on the offender, the circumstances of the offences nonetheless require such sentences to be imposed. Each case must be considered on its own facts. 58With great respect to the sentencing judge, I have concluded that, although each individual sentence in the present case was plainly warranted, the degree of accumulation was excessive in the circumstances, and resulted in an aggregate sentence that will be so crushing upon the applicant as to risk undermining the objects of sentencing. I accept that these are complex and often controversial judgments. I also accept that the cases in which this Court should interfere with such a judgment by a sentencing judge should be rare. 59There is no doubting the seriousness of the offences committed by the applicant, nor that condign punishment is warranted. The overriding considerations that have led me to the view I have reached are the applicant's youth at the time he sustained serious injuries in a motor vehicle accident, the positive direction in which his life was moving until that point, the spiralling downturn it took within a short time afterwards and the complicating effect of his injuries (including the psychological conditions addressed in the experts' reports) upon his process of rehabilitation. 60The applicant had been of good character before the present offences. He had enjoyed a happy upbringing and had completed the HSC in 2005. He was in a relationship and was employed. 61The motorbike accident occurred in early 2006 when the applicant was still 17 years of age. Although I have rejected the proposition that the applicant is not responsible for his choices following that event, it may readily be accepted that a seventeen-year-old boy might cope with injuries and disabilities of the kind he sustained with less maturity and stoicism than other members of the community. The applicant chose to address his pain with illicit drugs, which in due course engendered an addiction and a course of serious criminal offending. The result was that, within six months after turning 18, all his previous gains had been swept aside and he was in custody facing a series of very serious charges. The aggregate non-parole period of 11 years imposed by the sentencing judge will see him in jail until at least after he turns 30, possibly considerably longer. 62Notwithstanding the absence of any error in the individual sentences imposed, and accepting the clear need for some accumulation between those sentences, the aggregate sentence imposed is in my view so lengthy as to be likely to have a crushing effect on such a young man encountering the criminal justice system for the first time. For that reason (and no other), in my view the aggregate sentence imposed was manifestly excessive. 63The orders I propose are that leave to appeal be granted, that the appeal be allowed and that the sentences imposed at first instance be quashed and in lieu thereof the applicant be sentenced as follows: (a)on count 1, to a fixed term of imprisonment of four years commencing on 24 September 2007 and expiring on 23 September 2011; (b)on count 2, to a fixed term of imprisonment of four and a half years commencing on 24 September 2008 and expiring on 23 March 2013; (c)on count 3, to a fixed term of imprisonment of two years, commencing on 24 September 2011 and expiring on 23 September 2013; (d)on count 4, to a term of imprisonment of ten years with a non-parole period of 5 years commencing on 24 September 2011 and expiring on 23 September 2016 and a balance of term of 5 years expiring on 23 September 2021.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2011

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (6)

Cited By (10)