R v Chamma [2009] NSWCCA 92 | Case summary

MONDAY 6 APRIL 2009 R v MAHMOUD CHAMMA Judgment 1 McCLELLAN CJ at CL: I agree with Buddin J. 2 SIMPSON J: I agree with Buddin J. 3 BUDDIN J: This is a Crown appeal against the asserted inadequacy of a sentence imposed upon the respondent following his plea of guilty to an offence of robbery in company. A term of imprisonment of 2 years and 5 months with a non-parole period of 1 year and 2 months was imposed upon the respondent. The sentencing judge ordered that the sentence be served by way of periodic detention and that it commence on 14 February 2009. In imposing sentence, the sentencing judge took into account three offences which appeared on a Form 1 document. 4 An agreed statement of facts was in evidence before the sentencing judge. From that material, the following factual background can be established. Late on a Sunday evening in February 2008, the console operator at a convenience store in Sefton was attending to some paperwork having just served a customer. Three young men ran into the store having earlier been dropped out the front of the store by the driver of an old model Toyota sedan. One of the men, Salim Tabbah, jumped the counter and threatened the console operator with a knife while making a demand on him to open the till. The other two men grabbed packets of cigarettes and confectionery which was behind the counter. All four men had their faces or heads covered in hoods and were wearing dark clothing. Tabbah took the till out of the cash register. It contained about $3,000 to $3,500. The four men ran from the store and three of them got into a Ford Econovan parked about thirty metres away. That vehicle was then driven away from the scene by the respondent. 5 The rear registration plate of the vehicle was covered with a man's jacket. The van was followed by a marked police vehicle which had been travelling along the same street but in the opposite direction. The siren of the police vehicle had been activated whilst it followed the van. The remaining offender was prevented by police from getting into the van which was driven by the respondent. That occurred when the driver of the police vehicle turned it around in order to pursue the van and cut off his path. 6 As I have said, the respondent drove the other two men from the scene. After travelling for some distance, one of those two men then got out of the van. Tabbah also got out of the van but was arrested soon afterwards. After Tabbah got out of the van the respondent drove the van for a further 800 to 1,000 metres before stopping. He was then arrested. 7 The respondent had taken the van from outside a house in Auburn earlier that same night at some time around 8.30 to 9 pm. The driver of the van had left the keys and his personal effects, including a wallet and a mobile phone, in the van whilst he was visiting friends nearby. (That theft gave rise to the first offence on the Form 1 document. The fact that the respondent was a disqualified driver at the time gave rise to the third offence on the Form 1). 8 The second and remaining matter on the Form 1 document, was a charge of driving in a manner dangerous to the public. That charge related to the fashion in which the respondent drove from the store to the point of arrest, a distance of about 1½ kilometres. Whilst doing so, he drove at speeds of between eighty and ninety kilometres per hour in zones designated at either fifty or sixty kilometres per hour. Nor did he slow down at either a speed hump pedestrian crossing or a roundabout and at one stage he even crossed to the incorrect side of the road. 9 The till tray and most, but not all, of the money taken from the store was found in the rear of the van and was thus able to be recovered. Tabbah also discarded a knife which was also found in the rear of the van. The other two offenders who were involved have not been identified. The respondent declined to be interviewed by police. 10 The matter proceeded upon the basis that the Crown could not establish that the respondent knew of the existence of the knife, or of its intended use, by Tabbah prior to the commission of the offence. The Crown also accepted that the respondent was to be treated as a principal in the second degree. 11 Information concerning the respondent's background was provided to the sentencing judge in a psychological report prepared by a clinical psychologist, Mr Watson-Munro and in a pre-sentence report. The respondent was born on 31 July 1989 and was thus 18 at the time that the offence was committed. His background is unremarkable although he has nine brothers, all of whom are older than him. His parents and siblings remain supportive of him. He left school at the age of 15 and commenced an apprenticeship as an electrician. He has yet to complete it. At the time of his arrest, the respondent had been employed in the same position for a period of three years. It would appear that in the period leading up to sentence, the respondent had succumbed to abusing illicit drugs and alcohol and had also acquired a gambling problem. The sentencing judge found however that there was nothing to suggest that he was "actually under the influence of any illicit substance on the day of the commission of these offences". 12 The respondent was dealt with in the Local Court in March 2007 for driving a vehicle in a manner dangerous or at a speed dangerous and was placed on probation for a period of 18 months and was disqualified from driving for a similar period of time. He was thus on conditional liberty at the time he committed these offences. The respondent was subsequently called-up for a breach of that offence and in August 2008 was fined. An unrelated offence of driving whilst disqualified attracted a community service order. The respondent also had three matters on his traffic record. The sentencing judge took account of the fact that the respondent had spent 25 days in custody prior to being sentenced and structured the sentence accordingly. The respondent had been on bail for this offence but it was revoked on 6 January 2009 when the respondent was late in reporting to police as he was required to do. 13 The sentencing judge made the following observations: From the pre-sentence report and from the psychologist's report there is significant evidence of firstly, generally a productive and useful employee who is yet to complete his apprenticeship, a person who has family support and who it might be said has committed the present offence as something of an aberration due to some mixture of some habit or some addiction both to substances and to gambling and a desire to mix with undesirable associates, so that he acted impulsively on this occasion. He has detoxified whilst awaiting his case and has now returned to his religion and he is a person who it could be said is a person with significant prospects of rehabilitation. He has spent the last three or four weeks in custody and has experienced what that means for an offender. … But nonetheless the offender is still a person for whom considerations of rehabilitation are of great significance and his prospects of rehabilitation appear to be very good. Whilst he has been in the community for about ten months he was apparently able to avoid further conflict with the criminal law and to put his life back into some semblance of order which would make it much less likely that he would be persuaded to take part in an offence of this type. 14 The sentencing judge made a finding of "special circumstances" by reason of the respondent's age and prospects of rehabilitation. 15 A matter which assumed considerable significance at the sentencing hearing was the disposition of the proceedings involving Salim Tabbah. That offender pleaded guilty to a charge of robbery whilst armed with an offensive weapon and was sentenced to a non-parole period of 2 years with the total term being one of 4 years imprisonment. At the sentence hearing the Crown conceded that the respondent should receive a lesser sentence than his co-offender but "not a lot less". 16 The sentencing judge observed that the issue of parity had to be treated with "some caution" on account of two factors. The first was the co-offender's antecedents. He was a few months younger than the respondent but had a history as a juvenile consisting of offences of violence, including two offences of assault occasioning actual bodily harm, an offence of armed robbery and related offences and a further offence of robbery in company in respect of which control orders were imposed. He was also on parole at the time of the present offence. 17 As to the second matter, namely that the co-offender was charged with robbery whilst armed with an offensive weapon, his Honour observed: Whilst the guideline judgment of Henry is applicable to cases of robbery in company its applicability in practical terms is sometimes made more tenuous by the emphasis in Henry on the weapon used as one of the factors to be taken into account in assessing whether a case would fall within the type of case contemplated by the guidelines. … Given the different offence and the different factual matrix upon which the co-offender was sentenced the nature of the joint criminal enterprise must be somewhat uncertain here. This offender is to be sentenced on the basis of an agreement to participate by acting as the driver in a robbery which was to be conducted in company not on the basis that he was committing, agreeing to take part in an offence, committed not only in company, as he was aware, but also with one of the offenders being armed and willing to threaten the use of a knife, a matter of which the Crown cannot establish his own knowledge. In that sense the co-offender would seem to be a person who could be said to have been the obvious ringleader in this offence, given that he was apparently in charge of events inside the store and was the one who had the knife and acted with it to threaten the console operator and was the person who actually elected to carry out the threat of violence by using the weapon offensively, though not in this case as I understand it to cause any injury to the victim. The difference here between that principal in the first degree and this principal in the second degree both by virtue of the nature of the offence, the factual matrix upon which the offenders are to be sentenced and the antecedents of the co-offender, suggests that the principle of parity would not be breached by a significantly different sentence being imposed on the present offender if that is warranted. 18 The sentencing judge did not identify what discount was afforded to the respondent for the plea of guilty. Nevertheless it was of limited utility given that it was entered on the day prior to the commencement of a trial which was due to last only 4 or 5 days. By way of contrast, Samil Tabbah pleaded guilty at the earliest possible opportunity and received a discount of 25% as a result. He also expressed remorse. There was little basis upon which the sentencing judge could have found that the respondent was remorseful particularly as he did not give evidence during the course of the sentence proceedings. Although the sentencing judge did not refer to it, the respondent told the author of the pre-sentence report that he was motivated in part to commit the offence "for financial gain". 19 The sole ground of appeal is that the sentence is manifestly inadequate. It was submitted that the sentence which was imposed failed to reflect the objective seriousness of the offence and that too much weight had been given to the subjective features of the case. The Crown also submitted that the sentencing judge placed undue emphasis upon the factors which differentiated the circumstances of the respondent from those of the co-offender, and in doing so, imposed a sentence which did not give proper effect to the objective gravity of the offence itself and the respondent's role in it. 20 As the sentencing judge acknowledged, it is well-established that the guideline judgment of this court in R v Henry (1999) 46 NSWLR 346 applies to offences of robbery in company: R v Murchie (1999) 108 A Crim R 482. The guideline indicated that for offences containing the following seven characteristics a sentence between 4 and 5 years imprisonment would generally be called for: (i) Young offender with no or little criminal history; (ii) Weapon like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case. 21 The Crown submitted that notwithstanding the respondent's reduced culpability as a principal in the second degree and as someone who did not know of the use, or intended use of the knife, a sentence of full-time custody was nevertheless called for. The Crown relied upon this Court's decision in R v Goundar (2001) 127 A Crim R 331, in which Wood CJ at CL with whom other members of the Court agreed, referred to R v Govinden (1999) 106 A Crim R 314 and went on to say: [a]s the Court there recognised it is only in the most exceptional circumstances that persons who commit armed robberies, and I would add those who aid and abet those offences, should not receive sentences involving at least some period of full-time custody. (at par 40) 22 In my view there is nothing about the facts of this case which could be described as constituting "the most exceptional circumstances". 23 Indeed on any view of the matter, this was an offence of considerable seriousness. The respondent was one of a number of offenders who were involved in the robbery. The victim, as the sole operator in a convenience store late at night, was vulnerable. The amount of money taken was, in the nature of these types of offences, quite considerable and the sentencing judge's conclusion that the offence was impulsive is not readily reconcilable with the fact that the offenders arrived in vehicles and were disguised. 24 Furthermore, a number of features of the Henry guideline were present in this offence and in particular characteristics (i), (iv), (v), (vii). It is true that the respondent had in his favour the fact that characteristic (ii) was absent. That however was to a large extent offset by the presence of the other features to which I have referred. Although it was arguably open to the sentencing judge to impose a sentence that fell a little below the Henry guideline, in my view the sentencing judge erred in imposing a sentence which departed from it to such a marked degree. Another way of putting the matter, is that the sentencing judge erred in not maintaining a due proportion between the sentence imposed upon the respondent and the sentence imposed upon the co-offender: Postiglione v The Queen (1997) 189 CLR 295 per Dawson and Gaudron JJ at 301-02. 25 I also accept the Crown submission that the sentencing judge gave more weight to the respondent's subjective circumstances than was warranted. Certainly his youth was a factor to be weighed in his favour although it is a characteristic which is inherent in the profile of offenders with which the guideline in Henry (supra) is concerned. Moreover, the fact that the respondent was on conditional liberty and that there were offences, of a not insignificant nature, on the Form 1 document were both matters that needed to be properly reflected in the sentence which was to be imposed. 26 All of those considerations lead me to conclude that an order requiring the respondent to serve the sentence by way of periodic detention was erroneous. The in-built leniency which such a sentence entails is well-recognised: R v Douar (2005) 159 A Crim R 154. Furthermore, having found that the respondent's prospects of rehabilitation and age warranted a finding of "special circumstances", the sentencing judge went on to conclude that rehabilitation was also a highly relevant factor in determining that the sentence should be served by way of periodic detention. His Honour said: But this offender has already experienced full-time custody. He has an apprenticeship to pick up, although it is not clear there is any employment directly available to him. Nonetheless his record of employment thus far would suggest that he should be able to find employment and to do so whilst serving his sentence would be of advantage not only to himself but to the community which has a strong interest in his rehabilitation. In those circumstances the extension of leniency by way of an order for periodic detention would not be misplaced. It would still recognise the objective seriousness of the offence, but would also serve to facilitate and further the process of rehabilitation which the offender had commenced to undergo whilst he was on bail for a considerable period prior to his arrest for the alleged breach of bail in January of this year. 27 That passage, and the earlier passage to which I referred, reveal that there has been an element of "double-counting" which has had the consequence that a manifestly inadequate sentence has been imposed. A similar conclusion was reached by this court in R v Bolder and Zaphir [2008] NSWCCA 222 in which a Crown appeal against sentences of periodic detention for an offence of robbery in company was allowed. 28 In coming to that view, I have paid careful attention to the principles which govern the determination of Crown appeals: R v Wall [2002] NSWCCA 42. I have nonetheless come to the conclusion that error has been established. Nor is there anything that would persuade me that this Court's residual discretion not to intervene even though error has been demonstrated, should be exercised. 29 The principle of double jeopardy applies and accordingly in my view it is appropriate to impose a sentence which is somewhat less that ought to have been imposed at first instance. In the circumstances I would also maintain the finding of "special circumstances". 30 I propose the following orders:

R v Chamma

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