Natoli v R

Cahyahi v The Queen (2007) 168 A Crim R 41 CASES CITED : R v Weldon (2002) 136 A Crim R 55 R v Henry (1999) 46 NSWLR 346

TEXTS CITED: Crimes (Sentencing Procedure) Act Crimes Act

PARTIES: NATOLI, Dominic Regina

COUNSEL: C A Davenport SC - Appellant V J Lydiard - Respondent

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

IN THE COURT OF CRIMINAL APPEAL 2007/13044

McCLELLAN CJ at CL JAMES J BUDDIN J

WEDNESDAY 25 FEBRUARY 2009 NATOLI, Dominic v R Judgment 1 McCLELLAN CJ at CL: I agree with James J. 2 JAMES J: Dominic Natoli applied for leave to appeal against sentences imposed on him in the District Court by his Honour Judge Woods for a number of offences to which he had pleaded guilty. 3 All but one of the offences for which the applicant was sentenced had been included in an indictment. These offences were:-

Count 1 - an offence of assaulting with intent to rob whilst armed with an offensive weapon, namely a handgun, which was committed on 17 November 2006.

Counts 2-5 - offences of robbery whilst armed with an offensive weapon, namely a handgun, the first two of which (counts 2 and 3) were committed on 20 November 2006 and the last two of which (counts 4 and 5) were committed on 23 November 2006. 4 The applicant was also sentenced for an offence of robbery in company committed on 26 November 2006, which was not included in the indictment. This offence was referred to in the proceedings on sentence as "the committal offence" or as "offence 10". 5 In sentencing the applicant for the offence charged in the first count in the indictment the sentencing judge took into account the additional offences in what was described in the proceedings on sentence as "the first form 1", which were two offences of robbery whilst armed with an offensive weapon namely a handgun, which were committed on 17 November 2006. 6 In sentencing the applicant for the committal offence the sentencing judge took into account the additional offences in what was described in the proceedings on sentence as "the second form 1", which were an offence of robbery whilst armed with an offensive weapon namely a handgun committed on 20 November 2006 and an offence of assault with intent to rob whilst armed with an offensive weapon namely a handgun, committed on 21 November 2006. 7 For the purpose of sentencing the applicant the sentencing judge divided the offences into four groups which he identified as group A (consisting of the offence charged in the first count in the indictment, taking into account the offences in the first form 1), group B (the offences charged in counts 2 and 3 in the indictment), group C (the offences charged in counts 4 and 5 in the indictment) and group D (the committal offence taking into account the offences in the second form 1). 8 The sentences imposed by his Honour were:-

For each of the offences charged in counts 2 and 3 in the indictment (group B), a sentence of imprisonment for four years six months commencing on 30 November 2006 and expiring on 29 May 2011.

For each of the offences charged in counts 4 and 5 in the indictment (group C), a sentence of imprisonment for four years six months commencing on 30 November 2009 and expiring on 29 May 2014.

For the committal offence and taking into account the offences in the second form 1 (group D), a sentence of imprisonment for three years nine months commencing on 30 November 2011 and expiring on 29 August 2015.

For the offence charged in count 1 in the indictment and taking into account the offences in the first form 1, a sentence of imprisonment consisting of a non-parole period of two years commencing on 30 November 2012 and expiring on 29 November 2014 and a parole period of four years commencing on 30 November 2014 and expiring on 29 November 2018. 9 The total of the head sentences imposed by his Honour was 12 years (from 30 November 2006 to 29 November 2018) and the total of the non-parole periods was eight years nine months (from 30 November 2006 to 29 August 2015). 10 The facts of all of the offences, apart from the committal offence, were very similar. In each of the offences the applicant approached a passenger on a suburban train, produced what would have appeared to the passenger to be a handgun but which was in fact a replica, pointed the gun at the passenger and made a demand that the passenger hand over money or property. When a completed robbery occurred, the property taken from the passenger was usually a small amount of cash or a mobile telephone. In the case of the offence charged in the first count in the indictment and the second offence in the second form 1 no property was taken from the victim. 11 In committing some of the offences the applicant made an express verbal threat to kill the victim, if his demand was not complied with. Two of the victims (count 2 and the first offence in the second form 1) were teenage boys. 12 In committing some of the offences the applicant applied or attempted to apply direct physical force to the victim. In committing the offence in count 1 the applicant threw a number of punches at the victim, which the victim blocked with his hands. In committing the offence in count 2 the applicant held the victim's head in a headlock. In committing the offence in count 5 the applicant approached the victim from behind and held the victim around the victim's neck. 13 The facts of the committal offence was somewhat different from the facts of the other offences. The offence was committed on a Sunday in the grounds of the University of Sydney, when the grounds were deserted. The applicant and a co-offender approached the victim, a member of the staff of a university department who had been working, and demanded money. There was a physical struggle in which the victim was pulled to the ground and kicked in the head. The victim's mobile telephone was taken. 14 All of the offences including the offence of robbery in company were offences under s 97(1) of the Crimes Act for which the maximum penalty is imprisonment for 20 years. There is no standard non-parole period for an offence under s 97.

Remarks on Sentence 15 In his remarks on sentence the sentencing judge stated the objective facts of the offences and summarised the offences by saying:- "This is a case where a young man now aged 22 engaged in a serious of what might be called "muggings" of various people, mostly on trains, and in circumstances where money or telephones were taken (or at least sought by threat)." 16 The weapon which the applicant had produced was a replica but, as his Honour stated, "the law is that an imitation handgun is a handgun". His Honour considered that the victims were vulnerable, being isolated in more or less empty trains or in the grounds of the University on a Sunday. 17 In the proceedings on sentence the Crown had suggested that the offences were worse than the typical case of armed robbery described by the Chief Justice in par [162] of his judgment in the guideline decision of R v Henry (1999) 46 NSWLR 346, on the ground that the applicant's offences were planned but the sentencing judge considered that "the degree of planning involved was modest, to say the least" and would appear to have rejected the Crown's submission. 18 His Honour noted in his remarks on sentence that in at least some of the offences there had been a co-offender, whose identity was known but who had apparently not been charged. 19 As to the applicant's subjective circumstances, his Honour noted the applicant's youth (he was born on 15 June 1985), his low-level of intelligence with significant impairment of cognitive capacity as established by a psychologist's report and the applicant's early pleas of guilty and his Honour found in favour of the applicant that he was contrite and had reasonable prospects of rehabilitation. Notwithstanding the applicant's low level of intelligence and impaired cognitive capacity, his Honour considered that there was still a significant need to give effect to general deterrence in sentencing the applicant. 20 His Honour found special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act in the partial accumulation of the sentences, in the applicant's youth and in his need for an extended period of supervision.

Grounds of appeal 21 There were two grounds of appeal against sentence.

1. His Honour erred in determining the non-parole (period) and in fact imposed a non-parole period of eight years and nine months. 22 The Crown conceded that this ground of appeal should be upheld. 23 In his remarks on sentence the sentencing judge, after announcing the sentences he was imposing, twice stated that the total non-parole period under the sentences he was imposing was eight years. His Honour also stated that the applicant would be eligible to be released on parole "at the expiration of the non-parole period on 29 November 2014", that is on the expiration of eight years from the commencement of the first sentences to be served on 30 November 2006. 24 However, under the sentences imposed by his Honour the non-parole periods did not expire until 29 August 2015 (the expiration of the sentence imposed for the committal offence), making total non-parole periods of eight years nine months and a parole period of three years three months. 25 It seems likely that his Honour overlooked that it was the non-parole period under the sentence for the committal offence which would be the last to expire and not the non-parole period under the sentence for the offence charged in count 1, which would, indeed, expire on 29 November 2014. 26 This error made by the sentencing judge, if it was the only error, could be corrected by bringing forward the commencement of the sentence for the committal offence.
2. The sentences imposed were manifestly excessive. 27 It was not submitted by counsel for the applicant that any of the individual sentences were manifestly excessive. What was submitted was that the sentencing judge had accumulated the sentences excessively, so that the total of the head sentences was manifestly excessive. 28 It was pointed out by counsel for the applicant that all of the offences were very similar and that they had been committed within a period of a few days between 17 November 2006 and 26 November 2006 and it was submitted that the offences could be regarded as forming part of a single discrete episode of criminality. Counsel pointed to the circumstances that the applicant was only 21 years old when he committed the offences, that he had no previous criminal history and that the sentencing judge had found that the applicant was a person having a low level of intelligence with significant impairment of his cognitive capacity. 29 Reference was made by counsel for the applicant to statistics kept by the Judicial Commission of sentences for offences under s 97(1) of the Crimes Act. These statistics indicated that in many hundreds of sentences for offences under s 97(1) imposed between January 2001 and December 2007 there were very few sentences as severe as those imposed on the applicant. 30 It was submitted by the Crown that it had been permissible for the sentencing judge, in sentencing for multiple offences, to divide the offences into groups and, where more than one offence was placed by the sentencing judge in a group, the sentencing judge had made the individual sentences for the offences within the group fully concurrent. 31 It was disputed by the Crown that the offences could be regarded as forming part of a single discrete episode of criminality. The offences had been committed on different days and each offence had involved a different victim. The Crown pointed to actual physical violence in the commission of some of the offences. 32 The principles to be applied in sentencing for multiple offences were concisely stated by Ipp JA, with the concurrence of the other members of the court, in R v Weldon (2002) 136 A Crim R 55 at 62. His Honour said at par 46-48:- " [46] A paramount principle of the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender's conduct: Veen v The Queen (No 2) (1988) 164 CLR 465. This principle applies in all cases, including where punishment is imposed for multiple offences. The sentence must be proportionate to the gravity of the offence, having regard to all the circumstances of the case Hoare v The Queen (1989) 167 CLR 348.

[47] The question whether sentences are to be imposed concurrently or cumulatively must always be answered by reference primarily to these criteria.

[48] It is not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed - but this is not an inflexible rule: Wilkins (1988) 38 A Crim R 445 (per Lee CJ at CL and Carruthers J, Allen J dissenting). The practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct, the subject of punishment on each count: Pearce v The Queen (1998) 194 CLR 610 at 624 (see also 621 to 622)." 33 In Cahyahi v The Queen (2007) 168 A Crim R 41 Howie J, with the concurrence of the other members of the court, said at 47 (27):- "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. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 34 In the present case I do not consider that the offences committed on different days, even though only a very few days apart, should be regarded as a single discrete episode of criminality, although it remains relevant that all the offences were committed within a very short period. As the authorities I have quoted indicate, whether offences are regarded as discrete acts of criminality or as forming part of a single episode of criminality is not decisive of whether sentences should be concurrent or cumulative or of the extent to which they should be concurrent or cumulative. 35 The fundamental question to be determined in the present case is whether it was within the sentencing judge's discretion to regard the aggregate of the sentences he was imposing, that is head sentences totalling 12 years, as justly reflecting the total criminality of the applicant or whether the aggregate sentence exceeded the upper limit of the range of total sentences within his Honour's discretion. 36 The total criminality of the applicant was considerable. He had committed six separate offences of either armed robbery, assault with intent to rob whilst armed or robbery in company. The applicant had been armed with what would have appeared to the victims to be a handgun. In sentencing for each of two of the offences the sentencing judge was to take into account two further offences of armed robbery, or assault with intent to rob. All told, there were 10 victims of the applicant's offences. 37 I have, nevertheless, come to the conclusion that the aggregate of the sentences was manifestly excessive, particularly having regard to the circumstances that the offences, even if not regarded as forming a single discrete episode of criminality, were committed within a few days of each other, that the offences were opportunistic rather than planned, that the applicant was only 21 years old at the time of committing the offences, that he had no previous criminal history and that he was a person of low intelligence with impaired cognitive capacity. I am conscious of the caution with which statistics of sentences should be used but the statistics of sentences for offences under s 97 which were provided to the Court do lend some support to the submission made on behalf of the applicant that the sentences imposed by the sentencing judge were extremely severe. 38 As I am of the opinion that the appeal should be allowed, it is necessary to re-sentence the applicant. I would not alter the head sentences set by the sentencing judge, which, considered in isolation, were not the subject of any criticism on the appeal. In my opinion, an appropriate total sentence to reflect the total criminality of the applicant would be 10 years. The total of the non-parole periods should bear the same proportion to the total of the head sentences as that determined by his Honour, that is the total of the non-parole periods should be two-thirds of the total of the head sentences, that is six years eight months. 39 To achieve this result and to make the sentences reasonably harmonious, I would alter the commencement date of the sentences for counts 4 and 5 to 30 November 2007. I would alter the commencement date of the sentence for the committal offence to 30 November 2008. I would make the sentence for count 1 a head sentence of six years commencing on 30 November 2010 and expiring on 29 November 2016, with a non-parole period of two years eight months commencing on 30 November 2010 and expiring on 29 July 2013 and a parole period of three years four months commencing on 30 July 2013 and expiring on 29 November 2016. 40 I would propose the following orders:-

(3) Vary the sentences for counts 4 and 5 so that they commence on 30 November 2007 and expire on 29 May 2012.

(4) Vary the sentence for the committal offence so that it commences on 30 November 2008 and expires on 29 August 2012.

(5) Quash the sentence on count 1 and in lieu thereof sentence the applicant to a non-parole period of two years eight months commencing on 30 November 2010 and expiring on 29 July 2013 and a parole period of three years four months commencing on 30 July 2013 and expiring on 29 November 2016.

(6) Otherwise confirm the sentences imposed by the sentencing judge.

(7) The earliest date on which the applicant would be eligible for release on parole will be 29 July 2013. 41 BUDDIN J: I agree with James J. **********

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