R v Ghareeb [2003] VSCA 111

9. On the first count he was sentenced to be imprisoned for one month and on the second count he was sentenced to be imprisoned for 7 years. A non-parole period of four years was fixed. The applicant seeks leave to appeal against sentence. Although the notice of appeal related to both counts it was only with respect to count 2 that argument was addressed to the Court. An application for leave was rejected by a judge of the Court on 23 August 2002 pursuant to s.582 of the Crimes Act 1958 and the applicant has elected to make application for leave to appeal before a court of three judges.

12. There are three grounds of appeal, first, that the sentence imposed was manifestly excessive; second, that the learned sentencing judge erred in failing to give sufficient weight to principles of parity of sentencing and, third, that the judge erred in failing to give sufficient weight to the youth of the applicant. Counsel referred to R. v. Mills[1]. .

15. It is convenient to take the first and third grounds together.

18. The offence was committed in the early hours of 29 June 2001. The applicant, who was a resident of Sydney, had driven with Hoblos to Melbourne in the applicant's motor car about five days before the offence. The two men then resided with Maksoud in his caravan at Brooklyn caravan park. On 28 June 2001 the three offenders resolved to commit an armed robbery on Drums Hotel at Coburg. The proposed location was suggested by Maksoud. The applicant was later to tell police that he was initially resistent to Maksoud's idea but greed finally overcame his resistance.

21. In submissions to the judge it was conceded by counsel then appearing for the applicant, and properly so, that the offence of armed robbery in this case was a serious example of a serious offence. The three offenders went to a Coles store and purchased three beanies and three pairs of gloves and cut eye holes into the beanies. On 28 June 2001 the three offenders went in Ghareeb's car, which was being driven by Hoblos, to the vicinity of the hotel. The car was fitted with false registration plates stolen by the applicant some days before. The judge accepted that that had been done not for the purpose of the proposed armed robbery, but in order to facilitate the stealing of petrol. Maksoud supplied two guns, a loaded .22 sawn-off rifle and a .303 rifle. The prosecutor accepted that the .303 rifle was not loaded.

24. The applicant and Maksoud entered the gaming room of the hotel in the early hours of 29 June 2001. They were wearing the beanies and gloves and the applicant was carrying the .303 with Maksoud carrying the .22 rifle. Maksoud fired a shot into the ceiling then demanded the patrons and staff get on the floor. There were then 17 patrons and 7 staff present. The applicant kept those people covered with the .303 rifle. The applicant told police that both he and Maksoud said to those present, "Get on the floor, get on the ground", and he demanded to know who was the manager. The manager identified himself and Maksoud caused him to open the safe from which a large sum of money, and also money from the drawers behind the counter, was taken. In all $54,082.20 was taken. As they left Maksoud fired another shot into the ceiling. During the robbery the applicant was saying words such as, "Nobody moves, nobody gets hurt" and, "Stay calm". The manager said in his statement that the offenders were very aggressive and that he was fearful for his life and the lives of his patrons and staff.

27. The offenders left the premises, entered the car and were driven away by Hoblos, but then Maksoud took over the driving. After being stopped by police Maksoud reversed into the police car and sped away. Maksoud, alone, was charged and pleaded guilty to the additional offence of recklessly engaging in conduct which placed the police officers in danger of serious injury. For that offence he was sentenced to six months' imprisonment. After a high speed chase by the police the vehicle crashed and all three occupants were injured. The robbery proceeds were wholly recovered.

30. Mr Holdenson, for the applicant, submitted that the sentence was manifestly excessive, being outside the range of sentences for offences such as this and being out of proportion to the role taken by the applicant in committing the offence. In addition, he submitted the sentence was so high as to reflect the fact that too little weight was given to several important factors, namely, the fact that the applicant pleaded guilty at the earliest opportunity (being at the committal stage), the additional evidence, which the judge accepted, that he exhibited a level of remorse over and above that which was demonstrated merely by his plea of guilty, the factor of the youth of the applicant, his prospects of rehabilitation and other mitigatory factors in his antecedents.

33. The applicant was aged 21 at the time of sentencing and was aged 20 at the time of the offence. He had no prior convictions.

36. The applicant was born in Lebanon and came to Australia when a child. His family, which included seven siblings, resided in Sydney. The judge accepted that it was a loving and responsible family.

39. The applicant left school upon completing year 10. He had some learning difficulties at school which his family believed, and the judge accepted, were attributable to the fact that for some of the time he had been illiterate in English. After leaving school the applicant gained employment with a company building balustrades, then worked as an apprentice mechanic at a petrol station owned by members of family, and then with another balustrade company. He lost that last job, so the judge concluded, because of the use of heroin.

42. The applicant's drug history was discussed in a report from forensic psychologist Mr Bernard Healey which was tendered below. The applicant told Mr Healey that he commenced smoking cannabis at the age of 14 and heroin at 16, initially smoking it but then using it intravenously. He also used Ecstasy and cannabis. The applicant's brother, Mahmoud, who at one time, and for a period of six years, had been a youth worker, gave evidence that in about 2000 or 2001 he had learned that the applicant was using hashish and counselled him about that, but he had been unaware of his heroin use.

45. His Honour accepted evidence that the break-up of the applicant's relationship with his girlfriend, which occurred a month or two before the applicant moved to Melbourne, had a profound effect upon him. The break-up was precipitated by the parents of the girlfriend, they being opposed to the relationship because the applicant was Muslim and his girlfriend was Catholic.

48. The applicant told Mr Healey that he had come to Melbourne in order to remove himself from the drug scene in New South Wales and had planned to remain here for 12 months and to withdraw from heroin. He claimed to owe a debt in the order of $17,000 to his drug supplier in Sydney. He claimed to have been addicted to heroin at the time of this offence and had taken Ecstasy tablets before the armed robbery. He expressed guilt and self reproach about the offence and attributed his behaviour to the impact of drugs on his life.

51. The applicant did not mention his debt to the drug dealer when he was interviewed by police, but did he tell them that he had debts of about that sum and that it was debt which caused him to commit the armed robbery. There was independent evidence of threats directed to him by telephone at his home which supported his contention that he was in debt to persons who threatened him with violence. The judge accepted that the applicant came to Melbourne to escape the pressure of his drug debts.

54. His Honour accepted the evidence of drug misuse which Mr Healey recounted, and he also accepted the evidence which came from a number of sources that the applicant was very remorseful for his conduct. Mr Healey said when he saw the applicant in January 2002 he was then suffering from depression. IQ tests showed him to be at the average level of intelligence.

57. The judge accepted evidence from one character witness, which was consistent with that of other such witnesses, that the applicant was generally a person who was sensitive and easily influenced by others and that the conduct involved in these offences was out of character. His Honour accepted that there were good prospects of rehabilitation which he said was reflected in his fixing a shorter than usual non-parole period.

60. As may be seen, the judge made many findings which were favourable to the applicant and expressly noted the early plea of guilty and the evidence of remorse, which factors he expressly said meant that he would impose a more lenient sentence than otherwise would have been the case. Mr Holdenson did not contend that His Honour failed to identify and give weight to the many mitigating factors discussed above, but submitted that the sentence which was imposed was so high as to demonstrate that His Honour could not have given sufficient weight to those mitigating considerations. The plea of guilty, the youth of the applicant, absence of prior convictions, remorse and other factors, including the fact that he was separated from his family whilst undergoing his sentence, all should have produced a much lower sentence than that imposed, Mr Holdenson submitted.

63. In addition, as to ground three, Mr Holdenson submitted that although the applicant's youth was a factor in the lower than usual non-parole period which was fixed, it should have been more substantially reflected in the head sentence and the sentence imposed did not give effect to the stated intention to recognize the rehabilitation prospects of the applicant.

66. I am not persuaded by the contentions that the sentence was manifestly excessive, or the contention that insufficient weight was given to the factor of the applicant's youth. As is often said, the question whether a sentence is manifestly excessive does not admit to much argument.

69. In this case the sentencing judge rightly observed that the factor of general deterrence was of primary importance in a case of armed robbery and particularly so in a case like the present where guns were used and one was discharged. As important as is the factor of youth in sentencing, there is less scope for leniency on account of an offender's youth in the case of armed robbery, both because of the seriousness of the offence and also often because there are limited prospects of rehabilitation.[2] In the present case the judge accepted that there were good prospects of rehabilitation but in my opinion the benefit the applicant gains by virtue of that acknowledgment does not substantially reduce the importance of general deterrence in this case, having regard to the circumstances in which this armed robbery was committed.

72. In all the circumstances of this case, manifest excess has not been demonstrated by the applicant. The learned sentencing judge carefully weighed all relevant factors and the sentence imposed made proper allowance for all mitigating factors. In particular, I am not persuaded that the judge erred in the weight he gave to the question of the applicant's youth, thus I reject grounds one and three.

78. The Court would only intervene on grounds of disparity where the disparity or, as may be more appropriately expressed for this case, where the lack of disparity between the two sentences was manifest and was such as would engender a justifiable sense of grievance or give the appearance in the mind of an objective observer that justice has not been done.[3] Where such disparity is disclosed, the Appeal Court may intervene even though the sentence otherwise does not disclose relevant error.[4]

81. In submissions to the sentencing judge, the prosecutor said that the Crown regarded Maksoud as the principal in the armed robbery in that it was his idea and he supplied the guns and raised the matter with the other two. The prosecutor accepted that the .303 rifle held by the applicant was unloaded.

84. The co-accused, Maksoud, was sentenced to 7 years' imprisonment with a non-parole period of four and a half years and the co-accused, Hoblos, was sentenced to four years' imprisonment with a non-parole period of 18 months.

87. Maksoud, who was aged 22 at the time of sentencing, admitted seven prior convictions from four court appearances between October 1996 and July 1998. On the latter occasion he was sentenced in the District Court in Sydney on one count of being armed with intent to commit an indictable offence and one count of being a principal in the second degree to armed robbery. Mr Holdenson submitted that those convictions, coupled with the more significant role played by Maksoud in the present case, should have meant that the sentence imposed on the applicant was significantly less than for Maksoud. The fact that only the six months difference in the non-parole period distinguished their sentences meant that the applicant had a justifiable sense of grievance on parity grounds, counsel submitted.

90. It does not appear that the sentencing judge had many details as to the circumstances of the two offences for which Maksoud was convicted in July 1998, save for the outline contained in the annexure to the presentment in this case recounting in bare terms the prior convictions. His Honour noted that Maksoud had been sentenced to imprisonment for four months and 26 days in addition to the period of 12 months that he had already spent in custody awaiting sentence.

93. On the appeal, Mr Holdenson provided a copy of the sentencing remarks of the District Court Judge who sentenced Maksoud on the earlier occasion. It seems that that material was not available to the sentencing judge in this case. The offences for which Maksoud was sentenced were serious and involved Maksoud acting as a decoy for a robbery of a Burger King store, committed by his accomplice armed with a replica pistol. In imposing on Maksoud what was in effect a sentence of nearly 17 months imprisonment, the District Court Judge had regard to the early plea of guilty, his youth, the limited role played by Maksoud, the effect of peer pressure on him, his limited intelligence, marijuana smoking habit and evidence that he suffered depression.

96. The County Court judge who sentenced Maksoud in the present case had regard to a number of factors which he held mitigated penalty. Mrs Pullen submitted that many of those factors distinguished the applicant's position from that of Maksoud and explained why the sentences imposed on them both were relatively similar. Among those factors was the fact that Maksoud was severely injured in the car crash which occurred when he had been fleeing from the police. He was left with a permanent shortened right leg and left elbow stiffness and he suffered other injuries. In addition, he had a history of parental abuse and was forced to leave school early. When previously imprisoned he had been stabbed in the head and back and developed a post traumatic stress disorder for which he required counselling and he also suffered depression. He had a history of drug misuse from an early age.

99. I will return to compare the situations of the applicant and Maksoud shortly.

102. Mr Holdenson also contended that there was an inappropriate disparity as between the applicant's sentence and that of Hoblos. Hoblos admitted two driving offence convictions but no prior matter of significance. He was 19 at the time of the offence and his role was more limited than that of the two others. He had significant factors weighing in his favour on sentencing, including his suffering of an attention deficit hyperactive disorder, a history of suffering injury in an assault at the age of 14, the fact that he suffered head and neck injuries in this case, and a psychologist's evidence which showed he was an emotionally vulnerable person dependent on others and likely to be influenced by others and having a reduced capacity to think clearly when under stress. The judge accepted that his conduct was out of character, that he had remorse and good prospects of rehabilitation.

105. It was open to the judge in those circumstances to impose a significantly lesser sentence on Hoblos and in my opinion the difference between his sentence and that of the applicant could not give rise to a justifiable sense of outrage on the part of the applicant.

108. On the other hand, the fact that the same head sentence was imposed on both the applicant and Maksoud is a matter of some surprise. Mrs Pullen did not contend that the sentence imposed on Maksoud was manifestly inadequate, but submitted it was appropriate the sentence was the same because their roles in the armed robbery were much the same. But, as noted earlier, the prosecutor expressly acknowledged that Maksoud was the prime mover in instigating the offence. It was Maksoud who supplied the weapons, it was Maksoud who fired two shots; the applicant's weapon was not loaded. Thus His Honour imposed the same head sentence notwithstanding the fact that one person was a first offender who had never been in custody before and the other had a prior conviction for armed robbery for which he had been sentenced to imprisonment and, additionally, that latter person who had been the instigator of the offence was the supplier of the weapons and the shooter at the scene.

111. The identical head sentence cannot be explained by reference to prospects of rehabilitation. His Honour made expressed findings that both the applicant and Hoblos had good prospects of rehabilitation, but made no such finding about Maksoud. As Mrs Pullen pointed out, there were some passages in his sentencing remarks which might have implied that His Honour had not totally rejected

Maksoud's prospects of rehabilitation, but the contrast between those remarks and the explicit statements concerning the other offenders remain stark.

115. The learned sentencing judge said in sentencing the applicant that his good prospects of rehabilitation led him to impose a lower non-parole period than he otherwise would have imposed. In fact, the non-parole period was only six months less than that imposed on Maksoud. It is not, however, necessary to consider whether the complaint as to disparity concerning the non-parole period is made out. The fact that without any explanation at all by the judge the same head sentence was imposed on both, notwithstanding the factors which distinguished the situation of Maksoud from that of the applicant, leads me to conclude that the complaint as to the lack of appropriate disparity has been made out. The application for leave to appeal, in my opinion, should be granted, the appeal be allowed and the sentence for armed robbery be set aside.

118. That being so, a new head sentence and non-parole period on the armed robbery count should be determined by this Court. In my opinion, having regard to the factors discussed above, including in particular the plea of guilty, the youth of the applicant, his lack of prior convictions and his favourable prospects of rehabilitation, and having regard also to the seriousness of the offence and the need for specific and general deterrence, the applicant should be sentenced to five years' imprisonment on the armed robbery count and a non-parole period of three years should be fixed.

122. I agree for the reasons advanced by Eames, J.A. that this application should be allowed. I also agree with the disposition proposed by him.

126. I agree with the disposition of the matter proposed by Eames, J.A. and with His Honour's reasons.

The application for leave to appeal against the sentence imposed on count 2 is allowed.

The appeal is treated as having been instituted, heard instanter and allowed.

The sentence imposed in the Court below on count 2 is set aside and in lieu thereof the Court imposes a sentence of five years' imprisonment in respect of which a non-parole period of three years is fixed.

The Court declares the period of 771 days detention that the appellant has already undergone is to be reckoned as having been served under the sentence hereby imposed. The Court directs this declaration and its details be entered in the records of the Court.

[1] [1998] 4 V.R. 235 at 241. See, too, R. v. Giles [1999] VSCA 208 at [20] and R. v. Tran [2002] VSCA 52; (2002) 4 V.R. 457 at [14]

[2] See R. v. Nguyen and Okobagerish [2002] VSCA 130 at [36] per O'Bryan, A.J.A.

[3] See R. v. Taudevin [1996] VICSC 7; [1996] 2 V.R. 402 at 404 and Lowe v. The Queen [1984] HCA 46; (1984) 154 CLR 606.

[4] See R. v. Wilson [2000] VSCA 202; (2000) 116 A.Crim. R. 90.