249 CLR 571
Chung v R [2017] NSWCCA 48
CMB v Attorney-General (NSW) [2015] HCA 9
256 CLR 346
Dinsdale v The Queen [2000] HCA 54
202 CLR 321
Everett v The Queen [1994] HCA 49
181 CLR 295
Green v The Queen
Source
Original judgment source is linked above.
Catchwords
249 CLR 571
Chung v R [2017] NSWCCA 48
CMB v Attorney-General (NSW) [2015] HCA 9256 CLR 346
Dinsdale v The Queen [2000] HCA 54202 CLR 321
Everett v The Queen [1994] HCA 49181 CLR 295
Green v The QueenQuinn v The Queen [2011] HCA 49244 CLR 462
Harris v R [2015] NSWCCA 81
Hili v The QueenJones v The Queen [2010] HCA 45242 CLR 520
Markarian v The Queen [2005] HCA 25228 CLR 357
Perkins v R [2018] NSWCCA 62
Power v The Queen [1974] HCA 26131 CLR 623
R v Faaoloii, Schaafhausen & Tuala [2016] NSWCCA 263
R v Henry [1999] NSWCCA 11146 NSWLR 346
R v Simpson [2001] NSWCCA 534
Judgment (3 paragraphs)
[1]
Solicitors:
Solicitor for Public Prosecutions - Applicant
Abbas Lawyers - Respondent El Sayah
Abbas Lawyers - Respondent Idaayen
Lovemore Lawyers - Applicant Mansaray
File Number(s): 2016/265963;2016/265966;2016/265965
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 19 October 2017
Before: Acting Judge J Williams
File Number(s): 2016/265963;
2016/265966;
2016/265965
[2]
JUDGMENT
HOEBEN CJ at CL:
Offences and sentence
The three respondents each pleaded guilty to an offence of robbery in company contrary to s 97(1) Crimes Act 1900 (NSW). The pleas were entered on 15 March 2017 at the Burwood Local Court. This offence carries a maximum penalty of imprisonment for 20 years with no standard non-parole period.
The sentence proceedings were heard on 22 September 2017 before Williams ADCJ, who pronounced sentence on 19 October 2017 as follows:
In respect of each respondent, imprisonment for 2 years and 4 months with a non-parole period of 10 months.
In the case of Mr El Sayah, the sentence was to commence on 31 October 2017, in the case of Mr Idaayen, the sentence was to commence on 9 November 2017 and in the case of Mr Mansaray, the sentence was to commence on 6 October 2017. The different commencement dates had regard to the periods which each respondent spent in custody before bail was granted.
The Director of Public Prosecutions appeals pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against these sentences. Notices of Appeal were signed by the Acting Deputy Director of Public Prosecutions on 3 November 2017 and service of the Notices of Appeal was effected between 17 November and 20 November 2017.
The single ground of appeal is that the head sentences and the non-parole periods are manifestly inadequate.
Factual background
The incident giving rise to the charges occurred on the evening of 4 September 2016. At that time each of the respondents was aged respectively 18 and 5 months (El Sayah), 18 and 1 month (Idaayen) and 18 and 10 months (Mansaray). None of the respondents had a criminal record. Without intending any disrespect, I will refer to the respondents by their surnames.
At approximately 6.45pm on 4 September 2016 the respondents and a fourth co-offender parked a car on Cooper Road, Yagoona approximately 20 metres from a tobacconist shop. The car had been stolen. At that time Rahim Saied (the victim) was the only person working in the tobacconist shop.
After parking the car the four co-offenders ran into the tobacconist shop. Mansaray was first into the shop wearing a black bandanna which concealed his face and white gloves. He was holding a kitchen knife of approximately 15 cms in length. Idaayen, was second into the shop. He had a red T-shirt wrapped around the bottom half of his face and was also wearing gloves. El Sayah was the next to run into the shop. He was wearing a jumper with a hood which covered his head, and white cotton gloves. He was carrying a large chequered bag and a meat cleaver. The fourth co-offender also entered the shop.
Upon the entering the shop, Mansaray immediately jumped the counter yelling "Give me the f----ing money". The victim attempted to flee but was unable to do so because Mansaray grabbed him and pulled him to the ground. Idaayen jumped the counter and assisted by pushing the victim to the ground. The victim yelled "Help, help" to which Mansaray responded "Shut up, shut up".
Idaayen wrestled and pinned the victim to the floor by sitting on him and holding him down while Mansaray began to pull cigarette boxes out of the cabinets located behind the counter. El Sayah and the fourth co-offender ran into the shop seconds later closing the shop door behind them.
El Sayah ran to the counter and handed the chequered bag to Mansaray, before jumping the counter and assisting Mansaray with removing cigarette packets. All of the items they grabbed were put into the chequered bag. The fourth co-offender jumped the counter landing on the victim's ribs as he was lying on the ground underneath Idaayen. The respondents ransacked the cigarette cabinets while standing on the victim as he lay on the ground.
When he was able to, the victim pressed the duress alarm which was under the counter. This caused an alarm to sound loudly. The fourth co-offender punched the victim while he was on the ground before continuing to pull cigarette packets out of the cabinets with El Sayah and Mansaray. Idaayen remained on top of the victim holding him to the ground.
When the alarm started to sound, Mansaray, El Sayah and the fourth co-offender ran to the front door but discovered that they had been locked inside the shop. Idaayen remained sitting on the victim, pinning him to the ground. After attempting to open the door, Mansaray returned to the victim and began to search his pockets for the keys to the front door. The victim did not have any keys in his pockets and said "You idiots, the door locks from the security company".
Idaayen ran to the door and attempted to pull the wires from the alarm pad. El Sayah returned to the victim, leaning over him with the meat cleaver and said "Where are the keys?". El Sayah then smashed the glass of the counter top with the meat cleaver, causing it to shatter. The two other respondents and the fourth co-offender continued unsuccessfully to try to open the shop door. El Sayah continued to point the meat cleaver towards the victim.
What occurred in the shop was fully recorded by CCTV. This was shown in the sentence proceedings and has been viewed by this Court. It made clear that the victim was on the floor behind the counter for most of the time where he was randomly assaulted and trodden on by the respondents and the fourth co-offender. It also made clear that after the respondents were locked in the shop, they became desperate to escape, trashing the store and damaging stock in the process. Although the whole incident took place over eight minutes, considerable violence was involved.
At approximately 6.55pm police arrived and gained access to the shop by kicking the door in. Police observed that the victim inside the shop was crying and distressed. The victim was taken to Bankstown Hospital by ambulance where he remained for 24 hours. As a result of the offence, the victim sustained the following injuries:
8 cm abrasion to the right side of his face.
Bruising and swelling to both eyes.
Spinal tenderness.
Three lacerations to his abdomen.
Acutely tender ribs.
Tender shoulders.
Police established a crime scene at the location and recovered a number of exhibits, including the following:
A large silver meat cleaver.
A chequered bag containing a large number of cigarette boxes.
A large kitchen knife with a brown handle.
A large kitchen knife with a black handle.
A knife with an orange coloured handle.
A walkie-talkie.
Two pairs of white cotton gloves, a black balaclava and some of the clothing worn by the respondents to conceal their faces.
Police investigations revealed that the motor vehicle, which was driven to the tobacconist's shop, was stolen on 19 August 2016 from Avis Car Rentals in Mascot.
Each of the respondents participated in an ERISP after being taken into custody.
El Sayah told police that they had had some drama with the victim before, so this time they wanted to get him. He went to scare him a little bit, then the door closed and everything got worse. The victim started pushing them and throwing punches and everyone wanted to break his shop. El Sayah said that all of them were "trashing the store, then the cops arrived". He recalled smashing the front glass with the cleaver and then throwing it away.
Idaayen told police that they did not like the victim because he was always "disrespecting them" so they went to bash him. They went in and grabbed him. He said "We just went in there and slapped him around a bit, most of the time trying to open the door". He swore at the victim and called him an "Iraqi dog". He wore gloves so that he would not leave fingerprints.
Mansaray told police that he was inside the shop knocking stuff over trying to get out and found that the door was closed. They went to the shop wearing gloves and a bandana to bash the owner because he would not sell them cigarettes. They did not intend to steal the cigarettes. Their intention was to smash the place. They went there because they did not like the guy and were going to bash him. He denied hitting the victim, saying that he was screaming at him but did not hit him. He was wearing gloves so that he did not leave any fingerprints.
Proceedings on sentence
His Honour noted that each of the respondents' personal circumstances, while different, were also very similar. He accepted that each had pleaded guilty at the earliest opportunity and was therefore entitled to a discount of 25 per cent. Each respondent had no previous criminal convictions and each had recently turned 18. Each respondent came from a supportive family background and each was in gainful employment and had good prospects of rehabilitation.
El Sayah and Idaayen gave evidence in the sentence proceedings and expressed their remorse for the offending and their understanding of the trauma that they had caused to the victim. Although Mr Mansaray did not give evidence and had a somewhat different background to the others, his Honour accepted that he had a supportive family who had been assisting him. His background was different in that he came from a war torn country and had witnessed many terrible things as a young person, including the murder of his father. None of the respondents had any alcohol or drug issues and the offending was not committed under the influence of any substance, nor for the purpose of obtaining money for drugs.
His Honour observed (correctly in my opinion) that the video recording of the robbery was more informative than any written account. His Honour summarised his observations of the video as follows:
"The offenders entered the shop armed with three knives and a cleaver and with their faces obscured. The video then clearly shows what happened over the ensuing period. The victim ended up on the floor behind the counter where he was randomly assaulted and trodden on by the offenders who were trying to gain access to the cigarette storage cupboards and he was also threatened at different times with a weapon." (Sentence judgment 2.4)
Aged 18 at the time of the offence.
No criminal antecedents.
No drug and alcohol issues.
Family support.
Gainful employment as tradesmen.
Good prospects of rehabilitation.
Nevertheless, the Crown submitted that the exercise of the sentencing discretion had miscarried for the following reasons:
The role and degree of objective criminality of each respondent was significant.
All seven common factors identified in R v Henry were present.
This matter was more serious than R v Henry given:
1. The significant and prolonged violence against the victim.
2. The victim's injuries amounting to actual bodily harm.
3. The degree of planning.
4. The motivation, i.e. previous animosity and revenge.
5. The fact that weapons were used.
6. The fact that there were four offenders in the sense that their number and behaviour added to the menace associated with the offending.
The Crown submitted that the objective seriousness was above midrange and that the guideline judgment in R v Henry had clear application and provided a starting point, i.e. a head sentence of 4 - 5 years. The Crown noted the finding by his Honour that this offending was more serious than that in R v Henry. The Crown accepted, however, that pleas of guilty indicated a degree of remorse and that it was appropriate for a finding of special circumstances to be made.
Although the Crown relied upon a single ground of appeal of manifest inadequacy, it identified two discrete errors which had brought about that result. The Crown referred specifically to the allowance by his Honour of a further specific discount for remorse and quasi-custody in circumstances where the start point chosen by his Honour of 2 years and 8 months already included the 25 per cent discount for the utilitarian value of the plea of guilty. In support of that submission, the Crown relied upon the judgment of this Court (Beazley P, R A Hulme and Bellew JJ) in Chung v R [2017] NSWCCA 48 where their Honours said:
"63 … In R v Weismantel [2016] NSWCCA 204 R A Hulme J (with whom Beazley P and R S Hulme AJ agreed) observed:
"[15] There is one further matter that should not be allowed to pass without comment. R S Hulme AJ has noted that the learned sentencing judge allowed a discount of 15% for the respondent's facilitation of the administration of justice pursuant to s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) …
[16] Why the respondent should receive a greater discount (15%) for running a trial in a co-operative fashion than he did for pleading guilty and avoiding the need for a trial altogether in the other matters (10%) was not explained.
[17] But more importantly, quantification of the extent to which a mitigating factor has been taken into account is encouraged in relation to pleas of guilty (R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309) and statutorily required in relation to assistance to authorities (s 23 of the Act). It is otherwise regarded as an erroneous engagement in a two-staged approach to sentencing: see most recently Flaherty v R; R v Flaherty [2016] NSWCCA 188 at [76]-[77]. This is not an error upon which the Crown relied (indeed, it acquiesced in the judge's approach) so aside from making the observation it is otherwise of no moment in determining the outcome."
64 In the earlier decision of Flaherty v R; R v Flaherty (2016) 92 NSWLR 290; [2016] NSWCCA 188 to which his Honour referred, Simpson JA (with whom Hoeben CJ at CL and Price J agreed) observed:
"[76] In Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 Gaudron, Gummow and Hayne JJ said:
'[74] … the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 'two-stage approach' to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.
…
[76] … So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.' (footnote omitted)
[77] This is a clear case of sentencing by the forbidden 'two-stage' approach … Error is therefore demonstrated." (emphasis in original)
…
65 Had the sentencing judge approached the matter in the way for which counsel for the applicant contended, it may well have led to error of the kind to which Simpson J referred in Flaherty, and to which R A Hulme J referred in Weismantel."
Each had a positive subjective case.
The objective seriousness of the offending was mid-range.
The guideline judgment in R v Henry needed to be taken into account but was not prescriptive.
The strict bail conditions that each had been under for approximately 12 months should be taken into account.
Consideration
Principles applicable to a Crown appeal
A claim of manifest inadequacy requires the party advancing that complaint to establish that the sentences imposed were unreasonable or plainly unjust in a sentencing environment where there is no single "correct" sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [27]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58].
Consistency in sentencing is a matter of great importance in maintaining confidence in the administration of justice. Inadequate sentences give rise to a sense of injustice, not only in those who are the victims of the crimes in question, but also in the general public and accordingly are likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crime. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice (Everett v The Queen [1994] HCA 49; 181 CLR 295 at 306 per McHugh J).
The primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. In the exercise of its jurisdiction under s 5D(1) of the Criminal Appeal Act the Court retains a residual discretion to decline to interfere with a sentence even where the sentence is erroneously lenient: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [1]. The Crown bears the onus of negating any reason why the residual discretion of this Court not to interfere should be exercised: CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 at [36].
Cases might arise where the Court concludes that the inadequacy of the sentence appealed from is so marked that it amounts to "an affront to the administration of justice" which risks undermining public confidence in the criminal justice system. In such a case the Court is justified in interfering with the sentence: Green v The Queen; Quinn v The Queen at [42].
A claim of manifest inadequacy is a conclusion and does not depend on the establishment of specific error: Dinsdale v The Queen at [6]. In Harris v R [2015] NSWCCA 81 Adamson J [at 46] (with whom Basten JA and R A Hulme J agreed) observed that where there is in substance only one ground of appeal, manifest inadequacy. Identification of specific error is not required.
As his Honour appreciated, the guideline judgment in R v Henry provides a useful starting point for an analysis of whether or not the sentences imposed by his Honour were manifestly inadequate and if so whether this Court should intervene. R v Henry involved a five judge bench (Spigelman CJ; Wood CJ at CL, Newman, RS Hulme and Simpson JJ). Four of their Honours agreed with the following statements of principle which were set out in the judgment of Spigelman CJ:
"162 It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline:
(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.
163 Whilst it is possible to determine a starting point in a case of this kind, i.e. a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall.
164 There are two principal reasons why a sentencing range is appropriate for this offence:
(i) The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise.
(ii) Many of the seven identified characteristics contain within themselves an inherent variability, eg different kinds of knives or weapons in (ii); extent of "limited actual violence" in (iv); degree of vulnerability in (v); amount in (vi).
165 In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term. I have arrived at this figure after drawing on the collective knowledge of the other four members of the Court with respect to sentence ranges. I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies. The proposed range is broadly consistent with this body of prior decisions in this Court.
…
169 Aggravating and mitigating factors will justify a sentence below or above the range, as this Court's prior decisions indicate. The narrow range is a starting point.
170 In addition to factors which may arise in any case eg youth, offender's criminal record, cooperation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. These include:
(i) Nature of the weapon
(ii) Vulnerability of the victim
(iii) Position on a scale of impulsiveness/planning
(iv) Intensity of threat, or actual use, of force
(v) Number of offenders
(vi) Amount taken
(vii) Effect on victim(s)."
[3]
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: 16 April 2018
His Honour had regard to the guideline judgment in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 which set out a framework within which certain common features of armed robberies were identified. By reference to those common features and other aggravating factors such as the number of offenders, his Honour concluded that the offending in this case was more serious than that in R v Henry. His Honour assessed this offending as being "somewhat towards the midrange of objective seriousness of offending".
His Honour had regard to s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and noted that counsel for each of the respondents accepted that after considering all possible alternatives, no penalty other than imprisonment was appropriate. Nevertheless, counsel for the respondents argued that a sentence of 2 years or less would not be inappropriate and that it would be open to his Honour to impose either a suspended sentence or make the respondent subject to an intensive correction order. His Honour noted that neither the Crown nor defence counsel suggested that any of the respondents should be treated differently and that the parity of the offending was not in dispute. The same concession was made by counsel for the respondents in this appeal. Accordingly, I have approached the appeal in the same way.
In the sentence proceedings, the Crown accepted that it was open to his Honour to make a finding of special circumstances.
His Honour identified the following features of the offending which impacted upon its seriousness:
1. The respondents drove to the scene in a stolen vehicle.
2. If not all armed, each was aware that weapons were to be used.
3. They all were disguised.
4. They all wore gloves.
5. There was a two-way radio used.
6. There were four offenders.
7. The victim was punched a number of times and treated with the utmost contempt for his personal wellbeing.
8. When it was realised that they could not escape, the respondents proceeded to cause substantial damage to the shop's fittings, fixtures and stock.
While accepting that the respondents were young and immature, his Honour found that the undertaking involved planning. A car had been stolen some days before. They wore clothing designed to obscure their appearance and prevent fingerprints being left. This was not an impulsive unpremeditated offence. The victim was extremely vulnerable being alone at night in a small shop.
By way of mitigation his Honour took into account that the respondents complied with police directions and surrendered without further incident. They each made a record of interview and pleaded guilty. His Honour noted that there was a certain arbitrariness in a cut-off point between juvenile and adult offending of 18 years of age. It was well recognised that as young people get older, their maturity increases as does their responsibility to conform with society's rules. His Honour had regard to R v Tran [1999] NSWCCA 109 where Wood CJ at CL stressed the principle that when courts are required to sentence young offenders considerations of punishment and general deterrence should normally be regarded as subordinate to the need to foster rehabilitation and that full effect should be given to that principle in appropriate cases. His Honour accepted that that principle was particularly applicable in circumstances where a young offender is assessed as being at the crossroads between a life of criminality and a law abiding existence.
His Honour took into account the strong subjective case of each respondent. Idaayen was the eldest of six children, having come to Australia from Kuwait when he was aged one. He completed the HSC and was undertaking the first year of an electrical apprenticeship at the time of sentence. There was nothing in his family background that in any way might have contributed to his offending. A psychologist concluded that he had Adolescent Onset Conduct Disorder with suggestions of ADHD and Intermittent Explosive Disorder. His Honour was unsure what part, if any, this diagnosis played in Idaayen's offending. His risk of re-offending was assessed by both Community Corrections and the psychologist as low to moderate.
Mansaray was born in Sierra Leone and came to Australia as a refugee with his mother and sister via a camp in Guinea. Although he was exposed to violence, his Honour was unsure about the effect this had had on him insofar as the offending was concerned. A psychologist who saw him thought that he had signs of Post Traumatic Stress Disorder. At the time of sentence he was living with his mother and sister who had written to the court about him and supported him. He had recently commenced an apprenticeship in plumbing. The risk of him reoffending was assessed as low to moderate.
El Sayah was the third of four children born in Australia but the family moved to Lebanon when he was an infant and returned to Australia after about five years. He had a close and supportive family with no issues of concern as to his upbringing. He was in a third year apprenticeship as a plumber working fulltime for his uncle who gave evidence on his behalf. He had sought psychological help through his GP. The psychologist had prepared a treatment plan for him and diagnosed a Depressive Disorder. Neuro-psychological testing suggested a low level of functioning in a number of areas. His risk of reoffending was assessed by the psychologist and Community Corrections as low.
His Honour accepted that in the year since the offending had occurred, each respondent had made a concerted effort to improve himself educationally and to move away from adverse influences. His Honour accepted the evidence of remorse and disgust at what they had done given by Idaayen and El Sayah. His Honour noted that similar expressions of remorse were made by Mansaray to the Community Corrections officer in the pre-sentence report and his Honour was prepared to accept those as genuine.
In relation to the sentences imposed, his Honour said:
"This has not been an easy case to decide. It is not appropriate to fashion
a custodial sentence so as to enliven the ability to either suspend that
sentence or to determine that the sentence be served by way of, for example,
a home detention order or an intensive corrections order. When I look at the
principles involved and the decided cases, the JIRS statistics and take into
account the pleas of guilty and each offender's background and prospects for
the future, I would have thought that the minimum appropriate sentence having regard to the circumstances of the offending and allowing a 25 per cent discount was one of two years and eight months imprisonment. Taking into account their period of quasi-custody and their expressed remorse, I reduce that to two years and four months.
I find special circumstances, but impose a minimum period in custody which in my view is concomitant with the offending. Each offender is therefore convicted and sentenced to a minimum term often months' imprisonment and an additional term of one year and six months." (Sentence judgment 11.7 - 12.1)
THE APPEAL
The Crown accepted that each of the respondents had strong subjective cases:
The Crown also submitted that error had occurred in his Honour's assessment of the non-parole period at 35.7 per cent of the total term. Although the Crown accepted that a finding of special circumstances was appropriate, it submitted that his Honour's assessment failed to impose a non-parole period which properly reflected the minimum period of actual incarceration necessary to give effect to the multiple purposes of sentencing as was required by Power v The Queen [1974] HCA 26; 131 CLR 623 and R v Simpson [2001] NSWCCA 534; 53 NSWLR 704.
The Crown submitted that his Honour provided no reasons for allowing such a large variation of the statutory ratio. On that issue the Crown relied upon the judgment of Basten JA (Latham J agreeing) in R v Thomas [2007] NSWCCA 269:
30 … A custodial period constituting less than half the appropriate sentence itself requires justification. The obligation imposed by s 44(2) to provide reasons for the decision that there are special circumstances, when taken with the general obligation of a Court to give reasons for its decisions, should be understood as requiring some explanation of the reason for the degree of departure from the standard relationship, at least in the case of such a significant departure as that adopted in this matter. …"
(This case involved sentences for two robberies where the ratio of the non-parole period to the head sentence was 44 per cent, i.e. a non-parole period of 18 months with a head sentence of 3 years and 5 months.)
In summary, the Crown submitted that despite his Honour's finding that the offending in this matter was more serious than that in R v Henry, the sentence imposed not only failed to follow the guideline judgment, it was inconsistent with the other findings by his Honour as to the seriousness of the offending.
In response the respondents submitted that the sentencing range in R v Henry was one of 4 - 5 years before the consideration of aggravating and mitigating factors and it was based on a late plea of guilty allowing a discount of 10 per cent. If one started with a head sentence of 4 years, a discount of 10 per cent would reduce the starting point to approximately 3 years and 7 months. Looked at in another way, if one added 25 per cent to his Honour's start point of 2 years and 8 months, a sentence of approximately 3 years and 2 months was produced which was not significantly out of step with the R v Henry guideline.
The respondents also relied upon the JIRS sentencing statistics which were before his Honour and which demonstrated that for offenders aged 18 to 20 years, 43 per cent received a sentence involving fulltime custody and that over 40 per cent of those who received a custodial sentence received a non-parole period or fixed term of less than 12 months. Despite the limitations associated with a reliance upon general statistics, the respondents submitted that the size of the sample was such that it needed to be taken into account by this Court.
The respondents stressed the strong subjective case which each of them had including as it did their prospects of rehabilitation, the unlikelihood of them re-offending, their prior good character, their age, their expressions of remorse and their demonstrated rehabilitation at the time of sentencing.
In relation to Mansaray, it was submitted that he came from a traumatic background in that he had been in Sierra Leone, had seen his father killed and had subsequently been in a refugee camp before coming to Australia. This, it was submitted, was a matter to be taken into account by way of mitigation in accordance with the principles set out by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. It was submitted that the decision in that case does not require evidence that the traumatic or deprived background has created a causal connection with the offending behaviour but accepts that the exposure to certain forms of violence or deprivation may of itself cause a reduction in moral culpability. It was submitted that while on bail he had been receiving treatment through the NSW service for the Treatment and Rehabilitation of Torture and Trauma Survivors. Reliance was also placed on the report of a psychologist, Mr Brentin, to the effect that the effects of the trauma on Mansaray included flashbacks and memories of what he had seen.
For El Sayah it was submitted that psychological testing had established that he had a Control Disorder and an undiagnosed ADHD condition. Nevertheless, he had maintained employment during the time of the adjournment.
For Idaayen it was submitted that psychological tests had established a specific learning disorder and that his intellectual function in a number of areas was low. Despite this he had maintained employment and had a strongly supportive family. He had expressed his remorse, not only to the writers of reports, but when giving evidence in court.
The respondent submitted that each respondent suffered from some form of psychological deficit which needed to be taken into account in that such deficits would make their time in prison more difficult. It was submitted that the bail conditions imposed on each respondent were very strict and should be taken into account as involving a form of quasi-imprisonment. Curfews were involved and strict reporting conditions. It was submitted that no offences had been committed by the respondents while on bail and that this confirmed the unlikelihood of any future re-offending.
In summary, it was submitted on behalf of each of the respondents that:
As his Honour noted, all seven of the common elements in robbery offences were present in this offending and in some respects at a more serious level. Far from there being a limited degree of planning, considerable planning went into this offending. Rather than a threat of violence, actual violence was perpetrated against the victim. The plea of guilty, however, came at an earlier point in time and as his Honour found, each of the respondents was entitled to a discount of 25 per cent. In relation to category (i), i.e. young offender with little criminal history, it would have to be said that the respondents were very young offenders with no criminal history. That subjective consideration constitutes the strongest part of the case put forward on behalf of the respondents.
As well as those seven matters, a number of the additional considerations referred to by Spigelman CJ also apply to this case, i.e. the nature of the weapons, the vulnerability of the victim, the use of actual force, there being four offenders and injuries suffered by the victim. It was only the courageous actions of the victim which prevented the respondents taking a substantial and valuable quantity of cigarettes from the shop.
Although a failure to sentence in accordance with a guideline judgment does not of itself give rise to a ground of appeal, such a failure is relevant to a consideration of whether a sentence is manifestly inadequate. The difficulty for the respondents is that although his Honour referred on a number of occasions to R v Henry and concluded that on the facts before him the offending was more serious than that in R v Henry, that finding was not reflected in the sentence ultimately imposed. In that regard, there seems to be a significant disconnect between his Honour's findings as to the seriousness of the offending and the sentence.
It is true that considerable leeway needs to be given to young offenders, particularly to those who have no previous criminal record. That having been said where young persons conduct themselves in a way that an adult does and commit a crime that involves violence, in such a case it is the function of a court to protect the community and to appropriately give effect to the retributive and deterrent elements of sentencing.
When sentencing for serious offending, such as we have here, particularly involving violence, the protective aspect of the criminal courts must be kept in mind. Deterrence and retribution do not cease to be important merely because persons in their late teens are the persons committing grave crimes, particularly when those crimes involve physical violence. The offence of armed robbery, particularly involving violence against a vulnerable person is a crime of considerable gravity.
Although, as was properly conceded by the Crown, each of the respondents had a strong subjective case, there were some aspects of that case which, with great respect to their legal representative, were put at too high a level. While there were opinions expressed by psychologists as to various deficits affecting the respondents, there was no relationship identified between those deficits and the offending. Revenge and dislike of the victim seemed to be the motivating factors for all three respondents, yet there was no evidence before the court of any link between that motivation for the offending and the psychological deficits identified.
In the case of Mansaray, reliance was placed on the statements of principle in Bugmy v The Queen without there being any evidence of his experience in Sierra Leone having any causal link to the offending or otherwise adversely impacting on his time in prison. Nevertheless, with those qualifications, it is accepted that each of the respondents had a strong subjective case.
Even allowing for those strong subjective features, the Crown has in my opinion established two errors. His Honour erroneously applied a two stage process in the sentencing exercise and failed to provide any explanation for imposing a non-parole period which was 35.7 per cent of the head sentence. The difficulties associated with that extraordinarily low non-parole period are highlighted when one has regard to his Honour's finding that the seriousness of the offending was greater than that in R v Henry.
In my opinion, the sentence imposed by his Honour in all the circumstances, and even having regard to the very strong subjective case of the respondents, was manifestly inadequate. Put another way, the sentences imposed by his Honour was unreasonable and plainly unjust, such that this Court should conclude that there has been a failure to properly exercise the sentencing discretion.
That does not end the matter. There are, as the respondents pointed out, restrictions on when it is appropriate for the Court to intervene in a Crown appeal. It is up to the Crown to persuade the Court that the residual discretion not to intervene should not be given effect to.
As the authorities have made clear, the primary purpose of a Crown appeal against sentence is the expression of principles for the governance and guidance of sentencing courts. Here, although his Honour acknowledged the importance of R v Henry and why its application was appropriate, he did not apply it. Regrettably, armed robbery is a prevalent offence and it is appropriate for this Court to emphasise the seriousness of such offending and the importance of judges at first instance having appropriate regard for guideline judgments.
Other than an increase in their sentences, no matters of hardship which would otherwise affect the respondents have been identified. There was no relevant delay by the Crown in either the institution of the appeal nor in the time which has passed between the service of the appeal and this matter coming before the Court.
I am satisfied that in the circumstances of this case, the Crown has satisfied the onus outlined in R v CMB as to why the residual discretion should not apply in this case.
On re-sentence, it is not necessary to restate the facts or the competing arguments. I take as my starting point a head sentence of 4 years. This is based on a consideration of R v Henry, the seriousness of the offending and the strong subjective case of the respondents. An application of the 25 per cent discount for the early plea of guilty reduces that head sentence to 3 years. As was appropriately conceded by the Crown in the sentence proceedings, this is a case where a finding of special circumstances should be made. Accordingly in the case of each respondent, I would impose a non-parole period of 1 year and 10 months.
Proposed orders
1. The Crown appeal in each matter is allowed.
2. The sentences imposed by Acting Judge J Williams on 19 October 2017 are quashed.
3. In lieu thereof the following sentences are imposed:
1. Osman El Sayah - A sentence of imprisonment with a non-parole period of 1 year and 10 months commencing 31 October 2017 and expiring 30 August 2019, with a balance of term of 1 year and 2 months expiring 30 October 2020.
2. Ahmed Idaayen - A sentence of imprisonment with a non-parole period of 1 year and 10 months commencing 9 November 2017 and expiring 8 September 2019, with a balance of term of 1 year and 2 months expiring 8 November 2020.
3. Mohamed Mansaray - A sentence of imprisonment with a non-parole period of 1 year and 10 months commencing 6 October 2017 and expiring 5 August 2019, with a balance of term of 1 year and 2 months expiring 5 October 2020.
WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Hoeben CJ at CL. I agree with his Honour's reasons for his conclusions that the sentences imposed in the present case were manifestly inadequate and that there was not an adequate explanation for the imposition of a non-parole period that was 35.7 per cent of the head sentence.
For the reasons I gave in Perkins v R [2018] NSWCCA 62 at [72]-[81], I do not think that Mr Mansaray's experience as a refugee from Sierra Leone is necessarily irrelevant to his sentence because there is no evidence of a causal link between that experience and his offending. However, it was accepted in this case that there was no ground for distinguishing the individual circumstances of each of the offenders.
The primary judge referred to JIRS statistics that showed that of 136 cases of armed robbery involving a single offence, a plea of guilty, no prior convictions, no Form 1 matters, and an 18-20 year-old offender, 43 per cent of the offenders received a sentence involving full-time custody, 57 per cent were dealt with by way of non-custodial alternatives, and 38 per cent by way of s 12 suspended sentences. That suggests that the guidance provided in R v Henry needs to be reiterated.
This is a case in which the discretion to resentence should be exercised. I agree with the orders proposed by Hoeben CJ at CL.
N ADAMS J: I agree with the orders proposed by Hoeben CJ at CL for the reasons given by his Honour.
The objective seriousness of this offence well exceeded the "typical" offence described in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 for the reasons identified by his Honour. I have viewed the CCTV footage and it is clear that the victim was subjected to a lengthy ordeal whereby he was confronted by four men armed with three knives and a meat cleaver. Some of the offenders are seen to stand on the victim as he is lying on the floor whilst they steal the cigarettes from the shelves behind him. As the sentencing judge observed, the victim was "randomly assaulted and trodden on by the offenders" as he lay defenceless on the ground. When they find themselves trapped in the small store they effectively "trash" it in their desperate efforts to escape.
Somewhat unusually for an offence of this objective seriousness, the 18 year old offenders had no criminal antecedents; no drug and alcohol issues; strong family support and were all employed. It is most regrettable that each of their first contact with the criminal justice system was in relation to such serious offending behaviour.
The decision in R v Henry indicates that sentences for armed robbery offences having the seven nominated characteristics (at [162]) should generally fall within the range of 4 to 5 years. One of those seven characteristics is a "[y]oung offender with no or little criminal history." In R v Faaoloii, Schaafhausen & Tuala [2016] NSWCCA 263 at [72], RS Hulme AJ, with whom Hall and McCallum JJ agreed, noted that "the description in R v Henry of 'young offender with no or little criminal history' is so broad that it cannot be definitive of what, vis-à-vis the offender, the court is to consider." I agree with this observation by his Honour. Despite the seriousness of the offending, I am satisfied that the youth and antecedents of the respondents, as well as the pleas of guilty, are such as to ameliorate the sentence to be imposed following the successful Crown appeal in this matter to the extent proposed by the Chief Judge in Common Law.