MERHI v REGINA

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

JUDGMENT OF: McClellan CJatCL at 1; Hall J at 2; Harrison J at 72

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - grounds for interference - whether sentence manifestly excessive - whether disparity in sentences between co-offenders - consideration of seriousness of offence and applicant's substantial role in commission of offence - where appeal dismissed

PARTIES: Safi MERHI v REGINA

COUNSEL: Crown: P Calvert App: N Steel

SOLICITORS: Crown: S Kavanagh App: S O'Connor

IN THE COURT OF CRIMINAL APPEAL 2007/4176

McCLELLAN CJ at CL HALL J HARRISON J

THURSDAY 12 FEBRUARY 2009 SAFI MERHI v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Hall J 2 HALL J: The applicant, Safi Merhi, seeks leave to appeal against the severity of sentence imposed upon him in the District Court of New South Wales on 13 September 2007 following his pleas to a number of charges on an indictment. Offences charged 3 The applicant was charged and pleaded guilty in the Local Court at Burwood on 21 May 1007 to two counts of robbery in company (being Counts 1 and 3 on the indictment) and one count of robbery armed with an offensive weapon (being Count 2 on the indictment). Each offence was contrary to s.97(1) of the Crimes Act 1900 (NSW) and carried a maximum term of imprisonment of 20 years. 4 The three charges, to which the applicant pleaded guilty, were in the following terms:- Count 1: On 12 February 2007 at Lakemba in the State of New South Wales, [the applicant] being in company with [co-offender AEH] robbed Adhi Tyassasongko of a wallet and its contents, a mobile telephone and a portable MP3 player, the property of the said Adhi Tyassasongko. Count 2: On 19 February 2007 at Wiley Park in the State of New South Wales, [the applicant] being armed with an offensive weapon, namely a knife, robbed Ryan Bernardo of a wallet and its contents and a bag containing a tripod, the property of the said Ryan Bernado. Count 3: On 26 February 2007 at Punchbowl in the State of New South Wales, [the applicant] being in company with [co-offender AEH], robbed Si Mang Man of a wallet and its contents, a mobile telephone and a portable CD player, the property of the said Si Mang Man.

Sentences imposed 5 The individual sentences imposed on the applicant in respect of the three offences were as follows:- Count 1: A fixed term of two years imprisonment commencing on 15 March 2007 and expiring on 14 March 2009. Count 2: (Taking into account Form 1 matter - one count of obtaining a valuable thing by deception), a non-parole period of three years commencing on 15 March 2008 and expiring on 14 March 2011 with a balance of term of two years commencing on 15 March 2011 and expiring on 14 March 2013.

Count 3: A fixed term of two years imprisonment commencing on 15 March 2008 and expiring on 14 March 2010. 6 The sentences were back-dated to 15 March 2007, the date on which the applicant was taken into custody. 7 The sentences imposed in respect of both the second and third counts on the indictment were, accordingly, partially accumulated on the sentence imposed in respect of the first count by one year. 8 The total effective sentence imposed was one of six years imprisonment with a non-parole period of four years.

Grounds of Appeal 9 The Notice of Application for Leave to Appeal, dated 3 June 2008, set out the following grounds of appeal:- (1) The sentence imposed in relation to the offence of armed robbery is manifestly excessive.

(2) There is a disparity in the sentences imposed upon the co-offender and the applicant for the charge of robbery armed with an offensive weapon, such as to give rise to justifiable sense of grievance.

(3) The total effective sentence is manifestly excessive.

Facts 10 The facts were the subject of agreement and the Crown, accordingly, tendered an agreed statement of facts at the sentencing hearing before the District Court (Exhibit 1).

(1) Count 1: Robbery in Company on 12 February 2007 11 The victim was walking along Lakemba Street, having exited Lakemba train station around 8.10 pm. He was listening to music on his iPod and carrying an umbrella in one hand and a rectangular carry-bag in his other. 12 The applicant and his juvenile co-offender, AEH, were walking along the same street in the opposite direction. 13 The applicant spoke to the victim, the victim looked at him and during this, the juvenile co-offender grabbed the victim's umbrella and pushed the victim to the grass nature strip. The applicant and AEH stood quite close to the victim, one on each side of him. 14 The applicant demanded that the applicant give him everything he had. AEH demanded the victim's iPod. When the victim refused, AEH raised the umbrella into the air and threatened to stab the victim with it. The applicant then told the victim "Give me everything you have, I have a knife" and placed his hand under his jumper, pretending to have a knife. 15 AEH patted down the back pockets of the victim's pants, retrieving the victim's wallet from inside and removing some money ($10), two bank cards and a number of other personal cards. 16 The applicant slapped the victim's hand holding the carry bag, demanding to know the bag's contents. Again, the applicant placed his hand under his jumper whilst telling the victim he had a knife. The applicant did not take anything from the bag, which only contained gym clothes. 17 In response to the applicant's demand, the victim gave the applicant his mobile phone. He handed his iPod to AEH. The two offenders then walked off. 18 At around 8.45 pm, the applicant and AEH entered a nearby convenience store where AEH used one of the victim's bank cards to purchase a packet of cigarettes.

19 At around 8.59 pm the victim's bank card was used to pay for a taxi fare of $11.10, while around 9.03 pm, the card was used in a failed ATM transaction.

(2) Count 2: Armed robbery on 19 February 2007 20 On 19 February 2007, during the middle of the day, the applicant and his co-offender, Belall El-Arja, boarded a train at Bankstown station and approached the male victim, a commuter on that train. The carriage contained five or six other people. The victim had with him a bag containing a tripod and a second bag containing a camera and some lenses. He was playing with one of the lenses. 21 The applicant entered the victim's carriage at Punchbowl Station and sat opposite him, whilst his co-offender, El Arja, sat next to him. 22 The applicant attempted to engage the victim in conversation, asking him what he was doing with a lens and where he was going before taking hold of the victim's tripod bag and asking "What's this for?". After the victim answered him, the applicant then asked "Do you want to do this the easy way or the hard way?". The victim asked him what he meant and the applicant repeated himself. The applicant then motioned to his co-offender, El-Arja, who was pointing a knife which had a 10 centimetre blade at the victim and held it about 40 centimetre from the tripod bag. 23 The applicant said to the victim "Give me your money". The victim said he did not have any. The applicant demanded his wallet. The victim gave him his wallet which contained his credit card. The applicant then demanded the victim's phone. He said he was not sure where it was and began to look for it. The victim then grabbed the bag containing the camera, jumped onto the seat, climbed over the back of it and fled into the next carriage. The applicant and his co-offender did not give chase and alighted from the train at Wiley Park Station. CCTV footage showed the co-offender with the tripod bag with the applicant looking through a wallet. 24 The Form 1 offence occurred shortly after the offence in Count 2. The applicant entered a service station near Wiley Park Station. He asked for two $49 Vodaphone recharge cards and a packet of cigarettes. He used the victim's Visa card to pay for the items which cost $112. 25 Shortly after the robbery, the applicant entered a service station and purchased two $49 Vodafone recharge cards and a packet of cigarettes (amounting to $112.80) using the victim's credit card. It was this act that lead to the Form 1 matter of obtaining a valuable thing by deception.

(3) Count 3: Robbery in Company on 26 February 2007 26 On 26 February 2007 at around 7.35 pm, the victim was on his way home from university and was sitting on a Liverpool-bound train listening to his CD player when the applicant and AEH (the juvenile co-offender from the first robbery in company) approached him. 27 The applicant stood in front of the victim (seated in the upper carriage) while AEH stood beside the victim, blocking the exit from his seat. 28 The applicant said "Do you have any money?", while AEH said "Give me your wallet or I'll kill you". The applicant patted down the right hand pocket of the victim's jeans as AEH patted down the left hand pocket. One of the two offenders then stated "Give me your wallet or I'll hit you" before the victim handed his wallet to the applicant. 29 The applicant then walked towards the front of the carriage as he rifled through the victim's wallet. As he went through it, he said "Score!". The wallet contained about $90, a bank keycard, weekly train and bus tickets and some personal identification documents. 30 AHE continued to pat down the victim's pockets, demanding the victim's mobile phone which the victim handed to him. The co-offender started pulling at the earphones that were around his neck and then demanded that the victim hand it to him which he did. 31 The applicant then turned around to the victim and whispered "Don't tell, I'll kill you" before he and AEH alighted from the train.

Ground 1: The sentence imposed in relation to the offence of armed robbery is manifestly excessive 32 The applicant submitted that the sentence imposed in respect of count two (the most serious offence) was manifestly excessive in the circumstances of this case. 33 It was contended that Regina v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 (for the sentencing of offences contrary to s.97(1)) was applicable to the circumstances of his case and that the sentencing judge had made such a finding. It was submitted that the sentence imposed was "at the top of the range of the guideline", and that the guideline suggested a range of between four to five years total imprisonment as a starting point. 34 It was submitted in particular that the sentence for Count 2 - a term of imprisonment of five years, made up of a non-parole period of three years with a balance of two years - was excessive, being at the top of the sentencing range promulgated in Henry (supra). 35 It was also submitted the sentence imposed on the applicant in respect of Count 2 was excessive having regard to the fact that the sentencing range propounded in Henry (supra) was premised on an offender's late plea of guilty attracting a discount of 10%: see Regina v Thomson & Houlton [2000] NSWCCA 309; (2001) 49 NSWLR 383 at [161]. Here the applicant had entered an early plea of guilty, with the sentencing judge allowing the applicant a discount of 25%. 36 Taking into account the 25% discount given to the applicant, it was submitted that the sentencing judge must have commenced at a sentencing of around six years and seven months. The sentence imposed for Count 2, it was contended, was too high even when taking into account the Form 1 offence (said by the applicant to have warranted only a "relatively small increase" in the sentence). The circumstances of the Count 2 offence, according to the applicant, should have warranted a sentence towards the lower end of the Henry range (there being no use of force but merely a threat "of relatively low" intensity). 37 The submissions for the applicant noted that whilst the applicant had been subject to good behaviour bonds at the time of the offending, he was not on conditional liberty and so the breach of these bonds should not have affected the sentencing exercise. The Crown correctly observed, however, that the sentencing judge did not appear to have made a finding that the offences were aggravated by reason of them having been committed whilst the applicant was subject to a s.10 bond. 38 It was further submitted that there were "significant subjective features" warranting an amelioration of the sentence imposed. In this respect, the submissions pointed to, inter alia, the youth of the applicant (20 years at the time of the offending), the trauma said to have been suffered by him as a victim in the Cronulla riots and his subsequent cannabis use, and his attempts to access drug counselling services while in prison. 39 The Crown submitted that whilst the sentence imposed on the applicant in respect of Count 2 was at the top of the Henry sentencing range, it should be remembered that the sentencing judge had made the sentences in respect of this count and Count 3 concurrent. This was said to have been a highly favourable sentencing approach despite Count 3 being the separate offence of robbery in company on the 26 February 2007 (the second robbery in company offence). The effect of this approach was such as to provide no additional punishment for the 26 February robbery in company offence. 40 The Crown rejected the applicant's submission that his sentence ought to have been at the lower end of the range suggested in Henry. 41 The Crown emphasised that the threat of force in the armed robbery was "significant", it being observed that when the threats were made, the complainant was cornered in his seat. The Crown also submitted his Honour had made findings that were favourable to the accused. In particular, a finding was made that the loss suffered by the complainant was not substantial although it was noted that the complainant had minimised his loss by fleeing from his robbers. Similarly his Honour had found that the applicant's conduct was not part of a planned criminal activity although it contended that the presence of the "knife with a 10cm blade" suggested an element of planning. 42 As to the applicant's breach of the s.10 bond, the Crown submitted that this was properly an aggravating factor in respect of sentencing for the offences and that in any event it had had little impact on the sentence. 43 Lastly, the Crown observed that the subjective matters raised in the applicant's submissions had all been before the sentencing judge during the sentencing proceeding and had been the subject of his Honour's remarks on sentence. 44 In that respect, the Crown (in paragraph 50 of its written submissions) summarised the following subjective matters as found by the sentencing judge:-

(1) The applicant was working at the time of his arrest.

(2) The applicant felt obliged to look after his mother after his father left her in 2006. However, the sentencing judge noted that despite the claim, that he committed the offences to "help his mother … he did not give her any of the proceeds of the robberies" .

(3) Following an assault during the Cronulla riots, the applicant had been "under stress" and increased his daily intake of cannabis.

(4) The loss to the complainants of the robberies was not substantial.

(5) The offences were not part of a planned or organised criminal activity. 45 The Crown also noted that the sentencing judge found special circumstances because the sentences would be the applicant's first "experience of prison" and that he was willing to undergo rehabilitation for his drug addiction. 46 The applicant in the present case must establish that the differences between the sentences are manifestly excessive before intervention by this Court in the interests of justice arises: Lowe v The Queen (1984) 154 CLR 606 per Dawson J at 624 (with whom Wilson J concurred). Dawson J there stated:- "… on any view the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice had not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice …" (at 623 to 624) 47 I do not consider the sentence imposed in respect of Count 2 was excessive. The applicant played a lead role in confronting the victim, threatening him and pointed to the knife held by his co-offender to bring home his threat. He was the one who demanded that the victim hand over his money. The applicant's conduct throughout exhibited a brazen attitude in what was a grave armed robbery of a defenceless citizen. This ground should be rejected.

Ground 2: There is disparity in the sentences imposed upon the co-offender and the applicant for the charge of robbery armed with an offensive weapon such as to give rise to a justifiable sense of grievance 48 The applicant contended that there was a lack of parity of his sentence with that of the sentence of Belall El-Arja, his co-offender in the armed robbery of 19 February 2007 (the basis of Count 2). 49 The applicant's co-offender, Belall El-Arja, was sentenced in respect of the same armed robbery offence by his Honour Judge Marien on 30 November 2007. Accordingly, he was sentenced some two and a half months after the applicant had been sentenced. 50 The applicant's co-offender was sentenced to a term of imprisonment of five years with a non-parole period of three years, which is the same sentence that was imposed for that offence on the applicant. 51 The complaint is that, in respect of the co-offender, El-Arja, the sentencing judge took into account a more serious offence on a Form 1 being an offence of robbery in company. 52 It was submitted for the applicant that he should have received a lesser sentence than El-Arja because of the marked differences in the seriousness of the respective Form 1 offences. It was contended that because both received the same sentence, that gave rise to a justifiable sense of grievance on the part of the applicant: Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1996-1997) 189 CLR 295. 53 The Crown disputed that there was, as claimed, any gross disparity between the sentences imposed on the applicant and the co-offender or that the sentence imposed on the applicant was such as to give rise to a justifiable sense of grievance. 54 The Crown acknowledged that whilst the severity of the Form 1 matters taken into account for the sentencing of the applicant and the co-offender in respect of the armed robbery differed and whilst it was the co-offender who had held the knife during the armed robbery, the applicant had been subject to a s.10 bond at the time of the offending. The Crown stated that whilst the matters that gave rise to the bond were not serious (use of offensive language, refusal to comply with a direction), the applicant in embarking on a course of committing several offences while on a bond added a serious element to the offending.

55 I do not consider that the applicant has established this ground. There is no gross disparity made out. The armed robbery was a serious one and the applicant's role in it was a substantial one. Whilst disparate matters between the Form 1 matters are relied upon, in the co-offender's case, a charge of robbery in company was taken into account, whilst in the applicant's case, a charge of obtain benefit by deception was taken into account on the Form 1. In the applicant's case, the sentencing judge was entitled to bring into account the fact that he was subject to a s.10 bond. Committing the three offences whilst under a s.10 bond was but one aspect in sentencing in this multi-offence case. I do not consider that there is a basis for this Court intervening and, accordingly, Ground 2 should be rejected.

Ground 3: The total effective sentence and non-parole period is manifestly excessive 56 It was submitted that the total effective sentence of six years imprisonment with a non-parole period of four years is manifestly excessive. 57 In particular, the applicant contended the total sentence and non-parole period imposed failed to match the totality of the objective criminality of the applicant, and that the sentence should have been ameliorated once proper regard had been given to the subjective factors. 58 Accordingly, the applicant submitted that the sentence imposed in respect of Count 2 had been manifestly excessive (appeal ground one) thus producing a manifestly excessive overall sentence once partially accumulated with the sentence imposed in respect of Count 1. 59 The Crown submitted that the three offences for which the applicant was sentenced were serious offences committed as part of a crime spree perpetuated on vulnerable victims (two of the offences occurring on public transportation). 60 Again, the Crown emphasised that the sentencing structure adopted by his Honour - specifically, that Count 3 was made wholly concurrent with Count 2 - was highly favourable to the applicant. 61 The Crown submitted that the overall sentence imposed by his Honour was one that was open to him and that no error has been established. 62 The sentence imposed in respect of Count 2, as the Crown acknowledged, would appear to be at the top of the range suggested in the Henry guideline. However, as the Crown also observed, the commencement date of 15 March 2008 of that sentence was expressed to be the same as the two year sentence imposed in respect of the robbery in company offence committed on 26 February 2007. 63 The effect of the sentence imposed was, as the Crown observed, that there was no additional punishment for the second offence of robbery in company which was, in itself, a very serious matter. 64 The second robbery in company offence occurring approximately seven days after the armed robbery offence on 9 February 2007 was, as the Crown submitted, a serious offence. It involved, in effect, the victim being blocked from exiting his seat, demands being made for money with threats by the co-offender "I'll kill you", padding down the pocket of the victim's clothing and a further demand and threat "I'll hit you" by the co-offender. These matters constituted the offence as a serious one with the applicant, by his presence lending support to his co-offender's actions, demands and threats and taking the fruit of the criminal conduct. 65 As the sentence imposed in respect of the second robbery in company offence committed on 26 February 2007 was fully subsumed within the sentence imposed in respect of the armed robbery on 19 February 2007, the sentencing approach adopted in this case meant that the serious criminality did not attract any additional punishment. There has been criticism of such an approach: see Regina v Harris (2007) 171 A Crim R 267. In general terms, where there is a completely separate offence which can be said to involve serious criminality, good reason needs to be shown before sentences are made wholly concurrent. In Regina v Mungomery (2004) 151 A Crim R 376, Hulme J observed (at [25]):- "His Honour's approach to cumulative sentences is equally wrong. It is contrary to principle to say that they 'should be of a somewhat minimal nature'. Certainly at times they may represent an enormous burden, but they are only called for when a particular offender has burdened the community or members of it by the commission of a number of offences. They are imposed at least in part in an endeavour to protect the community from the consequences of an approach that once a person has committed one offence, he can commit offences with impunity from further punishment." 66 Accordingly, in determining Ground 3, the applicant's criminality associated with the second robbery in company offence is to be borne in mind. 67 In determining whether or not the sentence imposed in respect of Count 2 was excessive, the Crown, correctly in my view, emphasised that the threat of force was significant, the applicant giving the victim the choice between "the easy way or the hard way" sitting across from him whilst his co-offender, sitting close by, held a knife with a 10 centimetre blade pointed at the victim who was effectively cornered by the applicant and his co-offender. The fact that the co-offender held the knife and not the applicant, is a distinction that does not, in my opinion, diminish in any significant way the level of his culpability. He was fully aware that his threats were backed up by his co-offender producing the knife to enhance the level of threat for their mutual benefit. 68 The offences committed over a short period were all serious offences. I take into account, as earlier discussed, that the sentence imposed for the robbery in company offence committed on 26 February 2007 was wholly concurrent with the sentence for the armed robbery offence committed on 19 February 2007. 69 I am of the view that the overall effective sentence imposed by the sentencing judge was open to him and no error has been established in that respect. 70 I am of the opinion that Ground 3 should be rejected 71 Accordingly, the orders I propose are:-

(2) Appeal dismissed. 72 HARRISION J: I agree with Hall J. **********

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