Nanai v R

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900

McKibben v R [2007] NSWCCA 89 R v Cameron [2005] NSWCCA 357 CASES CITED : R v Sutton [2004] NSWCCA 225 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

PARTIES: Lotovale Nanai (Applicant) Regina (Respondent)

COUNSEL: S Beckett (Applicant) J Girdham (Respondent)

SOLICITORS: S O'Connor (Legal Aid Commission) (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2008/14304

GROVE J SIMPSON J R A HULME J

18 February 2010 Lotovale NANAI v R Judgment 1 GROVE J: I agree with Simpson J. 2 SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court on 11 December 2008 following his plea of guilty to a charge of robbery in circumstances of aggravation. The circumstance of aggravation was that actual bodily harm was inflicted in the course of the offence. 3 By s 95 of the Crimes Act 1900 the applicant was exposed to a maximum penalty of imprisonment for 20 years. Solomon DCJ sentenced him to imprisonment for 6 years made up of a non-parole period of 4½ years and a balance of term of 1½ years. In doing so, he took into account, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") a further offence of assault police officer in the execution of his duty.

The facts 4 The offence was committed during the morning of 11 May 2008, a Sunday, in Francis Street, a residential street of Darlinghurst. 5 The victim, a 22 year old male, was walking alone in the street, making a call on a mobile telephone. 6 The appellant and a co-offender (Aki Machee) were walking in an intersecting street and turned into Francis Street. Both were apparently intoxicated. One of the offenders (it may safely be inferred, the applicant) initiated an attack upon the victim. The applicant grabbed the victim with both hands, pulling and pushing him against a wall, causing his head to hit the wall, and then seized his mobile telephone. The attack was of sufficient ferocity to cause the victim's vision to become slightly blurred. 7 The applicant head-butted the victim. Machee punched him in the head, causing a laceration in the forehead. 8 The victim sought the assistance of the occupants of one of the residences in the street, who immediately contacted police. As a result, the two offenders were arrested shortly after and taken to the Kings Cross Police Station. 9 The victim was taken to Sydney Hospital for treatment, but does not appear to have been admitted. 10 At the police station the applicant was subjected to a strip search. During the course of this he spat at police. Spitting at one of the police officers constituted the additional offence taken into account. 11 The applicant declined to participate in a recorded interview, and declined to take part in an identification parade. Machee took part in an interview (in which he denied all knowledge of the offence) but also declined to take part in an identification parade.

Subjective circumstances 12 The applicant was born in Samoa in 1982 and was 26 years of age at the time of the offence. He is the second child and oldest son of his parents. His father is a pastor in the Samoan church, his mother a nurse. Besides an older sister and two younger brothers, there is an adopted older brother and younger sister. 13 At school he excelled in sports and his academic results were acceptable. In his mid-teens he became involved with alcohol and drug use; his alcohol use increased when a close friend died after having been stabbed in a fight. The applicant was eventually incarcerated in the juvenile justice system for 3 months. After his release he had some employment of various kinds. 14 Between November 2000 and January 2007 he was in custody (in the adult custodial system) as a result of convictions for aggravated robbery, assault occasioning actual bodily harm, malicious infliction of actual bodily harm, and sexual assault. During his incarceration he completed a number of courses, in drug and alcohol and computers, and worked in various workshops. He refused to participate in the sex offenders' programme and was accordingly denied parole. He was released on the expiration of his head sentence. He then obtained unskilled work. This came to an end when he reacted badly to the end of a relationship, but he did subsequently obtain alternative employment. 15 He has since established a new relationship, which was current at the time of sentencing. 16 His parents afford limited support to him, and offer him a home on his release, although, by reason of his criminal history, they refuse to visit him in prison.

The sentencing proceedings 17 The sentencing proceedings were unremarkable. Before the sentencing judge was the statement of facts (not contested), the applicant's criminal and custodial history, and a report of Ms Duffy, a psychologist. It is from this report that the outline of subjective circumstances above has largely been drawn. 18 Ms Duffy recorded that the applicant "was not keen" to resume any of the courses he had previously undertaken in custody. She also recorded that he had told her that, on the evening before the offence, he had been to a "bucks night" and that this was the first time he had consumed any significant quantity of alcohol in several months. He recalled having been sufficiently intoxicated to be removed from a nightclub. It was at the nightclub that he met Machee, who he had not previously known. 19 Notwithstanding the applicant's lack of interest in participating in remedial programs, it was Ms Duffy's view that anger management and other alcohol relapse prevention courses would be beneficial to him. 20 The applicant gave evidence. By this time he expressed acceptance that alcohol had been a problem for him, and he expressed a willingness to accept advice, if given, to undertake relevant programmes or courses. He said that although his mother had previously told him that, if he found himself in custody she would not visit him (and had not done so) nevertheless she was willing to have him at home on his release. He had family support from his parents and siblings.

The remarks on sentence 21 The sentencing judge recounted the facts. He found the offence to be unplanned and committed in an unsophisticated manner. He accepted that the applicant was intoxicated at the time. He found the offence to be in the mid-range of objective seriousness (although it is not an offence for which a standard non-parole period, pursuant to Pt 4 Div 1A of the Sentencing Procedure Act applies). He mentioned s 21A(3) of the Sentencing Procedure Act (pursuant to which he was obliged to take into account specified mitigating factors). He said: "I wish to dwell on a number of those matters and I deal with the subjective features of this case." 22 His Honour then recounted the subjective circumstances. He stated that, having heard evidence from the applicant, he was not confident that, on his release from custody, he would attend rehabilitation. Although his Honour made no express finding in relation to the likelihood of re-offending on the part of the applicant, or prospects of rehabilitation, or remorse, there was little, if any evidence, to support such a finding, and a fair reading of his Honour's remarks would suggest that he took an unfavourable view of the applicant in this respect. He noted the applicant's criminal record. He proceeded to impose the sentence I have mentioned above - sentence of 6 years with a non-parole period of 4½ years. Contrary to his stated intention, he did not return to or "dwell" on any of the individual items in the s 21A(3) catalogue. Indeed, only two of these could be said to be applicable - that the offence was not part of a planned or organised criminal activity (s 21A(3)(b)) (a matter that was, however, mentioned in an earlier context); and the plea of guilty (s 21A(3)(k)). 23 During the course of argument, his Honour rejected a submission that he ought to find, for the purposes of s 44(2) of the Sentencing Procedure Act, that special circumstances existed justifying a variation of the statutory ratio between the head sentence and the non-parole period. 24 Notably (for present purposes) absent from the remarks on sentence is any reference to the utilitarian value of the applicant's plea of guilty, or any express reduction in the sentence related thereto.

The co-offender Machee 25 Four months later, on 6 March 2009, Solomon DCJ sentenced Machee for his part in the offence. Machee was charged, under s 96 of the Crimes Act, with the offence of robbery in company. Such an offence carries a maximum penalty of imprisonment for 25 years (contrasted with the 20 years that is the maximum penalty prescribed by s 95, under which the applicant was charged), and is subject to a standard non-parole period of 7 years. 26 His Honour considered the requirements of s 21A of the Sentencing Procedure Act. He found no aggravating features within s 21A(2), but a number of mitigating features under s 21A(3). These were:

(b) the offence was not planned; (e) Machee had no record of prior convictions; (f) Machee was of good character; (g) Machee was unlikely to re-offend; (h) Machee had good prospects of rehabilitation; (i) Machee had shown genuine remorse; (k) Machee had pleaded guilty. 27 Although in listing these, his Honour was doing no more than following the dictates of s 21A, the features identified as (g), (h) and (i) are all, essentially, part of the same thing. They were notably absent in the findings made in respect of the applicant. However, that identified as (b), the lack of planning (and sophistication) was an express finding in the applicant's case. That identified as (k), the plea of guilty, applied equally in the applicant's case, but was not mentioned by the sentencing judge in the context of considering mitigating factors. 28 Machee was, at the time of the offence, 39 years of age, and had no prior criminal history. 29 In sentencing Machee, Solomon DCJ found that the applicant was the "ringleader" and had taken the lead role in the offence. He also found significant subjective circumstances in Machee's case - he had, for example, been active in making a positive contribution to the community. He had been essentially a non-drinker until the age of 34 when a matrimonial dispute, which resulted in the termination of his marriage, precipitated an addiction to alcohol and, for one year, to ecstasy. 30 He had undertaken rehabilitation and had positive prospects in that respect. 31 His Honour allowed, in recognition of the utilitarian value of his plea of guilty, a reduction of 20 percent: R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383. The plea was entered in the District Court on 29 September 2008. 32 Since Solomon DCJ was sentencing Machee after he had sentenced the applicant, he recognised the need to consider questions of parity. He noted the significant difference in the criminal histories of the two offenders, and said that, in sentencing the applicant, he had applied the principles stated in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. 33 I take this to be a reference to the passage at p 477 in which the High Court set out the manner in which past criminal history may be taken into account in sentencing an offender. 34 His Honour then imposed a sentence of imprisonment of 1 year and 8 months, execution of which he ordered to be suspended on Machee entering into a good behaviour bond.

The grounds of the application for leave to appeal 35 Three grounds were pleaded. They are: "(1) His Honour erred in that he did not take into account the timing and fact of the plea of guilty.

(3) The sentence imposed upon the co-accused Machee led to a justifiable sense of grievance."

Ground (1): the plea of guilty Ground (2): manifestly excessive? 36 These grounds can conveniently be dealt with together. 37 By s 22 of the Sentencing Procedure Act, a court sentencing an offender is obliged to take into account the fact that the offender has pleaded guilty, and the timing of the plea or the indication of the intention to plead, and may accordingly impose a penalty less than it otherwise would have done. 38 Reduction of sentence by reason of a plea of guilty is not obligatory, but, by sub-s (2), a court that does not reduce the sentence must indicate to the offender, and make a record of, its reasons for not doing so. 39 Further, by s 21A(3)(k), a plea of guilty is a mitigating feature which the court must take into account in determining sentence. 40 Guidance as to the appropriate level of reduction is to be found in Thomson and Houlton. Generally, depending largely upon the timing of the plea (or indication of intention to plead) the reduction may be expected to be of the order of 10 to 25 percent. Quantification is not obligatory, but is desirable. Failure to quantify the reduction is not of itself indicative of error. 41 These sentencing principles are well established and well known. The sentencing judge is extremely senior and experienced. It may be said that it is unlikely that he would have overlooked the (prima facie, at least) entitlement of the applicant to a reduction in sentence by reason of his plea. He certainly was entitled, if the sentencing judge declined to make such a reduction, to an explanation for that decision (s 22(2)). 42 Equally, however, it may be said that it is unlikely that, had his Honour in fact reduced the sentence he otherwise would have imposed, he would have overlooked the need to mention, and preferably quantify, the reduction (as he did when sentencing Machee). 43 It is true that sentencing judges retain a discretion to decline to allow any reduction in respect of the guilty plea. But the position has been reached that such an exercise of discretion calls, in the interests of transparency, for clear explanation: see for example, R v Sutton [2004] NSWCCA 225; R v Cameron [2005] NSWCCA 357; McKibben v R [2007] NSWCCA 89. 44 Failure to give any such explanation supports a conclusion that the matter was overlooked. 45 In this case, if one assumes that his Honour did in fact reduce the sentence, by, say 25 percent, then the starting point of sentencing was 8 years. If the reduction were 20 percent (in line with that allowed to Machee), the starting point was 7½ years. It was argued, on behalf of the applicant, that such a sentence, having regard to both the objective and subjective circumstances, would have been manifestly excessive. From this it should be inferred that the requirements of s 22 were overlooked. 46 Two conclusions are available; the first, that s 22 and Thomson and Houlton were inadvertently overlooked; the second, that the starting point, and thus the reduced sentence, were manifestly excessive. 47 I have come to the conclusion that the former conclusion ought to be drawn. Statistics (with all their limitations) show that, of 202 offenders sentenced for offences against s 95(1), between July 2001 and June 2008, only 8 (or a little over 3 percent) were subjected to non-parole periods of 4½ years or more. A similar pattern can be seen when the head sentences are examined. And these are statistics relevant to all offenders ie including those who went to trial and did not gain the benefit of a s 22 reduction. When the plea of guilty is factored in, the pool is smaller - only 43 cases - but suggests that only 5 offenders (or 11 percent) were subjected to a total term of 6 years or more (the Court was not provided with equivalent statistics for the non-parole period). 48 Even taking into account the applicant's past history and the unfavourable view the sentencing judge took of his rehabilitation prospects, the objective circumstances of this offence do not, in my view, justify its being placed in the worst 3 percent of cases. In my opinion, the sentence actually imposed was one appropriate to be imposed before the reduction for the plea of guilty. This Court ought to intervene to correct the error that I conclude has been demonstrated. I will return to the question of the level of reduction that ought to be made.

Ground (3): parity 49 I have outlined above the sentence imposed on Machee, and the reasons therefore. The disparity in sentences is marked, even before execution of the sentence was suspended. 50 I have also outlined, in some detail, the basis upon which the sentencing judge took the view that he did. Plainly, he regarded the applicant as the principal offender (and, in sentencing Machee, said so expressly), and Machee as somebody who became involved because he was present in the street with the applicant, in an intoxicated state, when they encountered the victim. Counsel for the applicant does not dispute the evidence showing, or the conclusion, that the applicant led Machee into the offence. Nevertheless, she submitted that the disparity in sentence was disproportionate to the disparity in the respective roles played by the offenders, and their subjective circumstances. 51 I have given careful consideration to this argument. There is no question that the disparity in sentences is very significant indeed. But so also is the disparity in culpability, and in personal circumstances. These were so marked as to render the principles of parity redundant in this case. 52 I would accordingly reject this ground of the application. 53 Nevertheless, the applicant is entitled, in my view, to succeed in the first (or, alternatively, the second) ground. In my opinion, the appropriate starting point (and that which his Honour intended) for the sentence (before reduction for the plea of guilty) was of a head sentence of 6 years, with a non-parole period of 4½ years. I propose that, in the exercise of this Court's discretion, those sentences be reduced by about 25 percent in recognition of the plea of guilty. There is no challenge to the refusal to find s 44(2) special circumstances, and, accordingly, the sentence imposed ought to conform to the statutory ratio, except insofar as a variation is made to allow for round figures. 54 Against the possibility of re-sentencing, the Court accepted additional evidence concerning the applicant's present circumstances, and conduct since incarceration. An affidavit affirmed by him recounts a history of his incarceration, which includes movement from prison to prison. The effect of this has been to preclude his taking part in courses that would assist with his rehabilitation, something he is now willing, and even anxious, to undertake. 55 While it is a matter of concern that rehabilitation programmes are not available to a motivated offender, I am unable to conclude that that is a reason for further reduction in the sentence. 56 Accordingly, I propose the following orders:

(2) Appeal allowed, the sentence quashed, and in lieu thereof the applicant be sentenced to imprisonment for 4 years and 6 months made up of a non-parole period of 3 years and 4 months, commencing 11 May 2008 and expiring on 10 September 2011, with a balance of term of 14 months, expiring on 10 November 2012. 57 R A HULME J: I agree with Simpson J. **********

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