R v Jammeh [2004] NSWCCA 327 | Case summary

TUESDAY 21 SEPTEMBER 2004 REGINA v ABOU JAMMEH Judgment 1 BUDDIN J: The applicant seeks leave to appeal against sentences which were imposed upon him in the District Court 2 On 26 July 2003 the applicant was convicted by a jury of a charge of robbery whilst armed with an offensive weapon. That offence was committed on 4 June 2002. On 4 August 2003 the applicant pleaded guilty to a charge of robbery which he had committed on 13 February 2001. The latter offence attracted a maximum penalty of 14 years imprisonment whilst the offence of armed robbery attracted a maximum penalty of 20 years imprisonment. 3 In respect of the robbery offence, Judge Woods QC sentenced the applicant to imprisonment for 3 years to commence on 11 November 2002 and to expire on 10 November 2005 with a non-parole period of 2 years to commence on the same day and to expire on 10 November 2004. In respect of the armed robbery offence, his Honour sentenced the applicant to 6 years imprisonment with a non-parole period of 4 years with each period to commence on 11 November 2004. The non-parole period was fixed to expire on 10 November 2008. The overall effective sentence for those two matters is accordingly a head sentence of 8 years with a non-parole period of 6 years. 4 On 10 November 2003 the applicant was presented for trial upon an indictment containing three counts viz steal from the person, threaten to inflict actual bodily harm with intent to have sexual intercourse and indecent assault. The applicant pleaded not guilty to all three counts and a jury was empanelled. Later the same day the Crown accepted the applicant's plea of guilty to the count of indecent assault in full discharge of the indictment. That offence attracts a maximum penalty of 5 years imprisonment. In respect of that offence, Judge Charteris sentenced the applicant to imprisonment for 3 years with a non-parole period of 18 months with both periods to commence on 11 November 2008. The head sentence was fixed to expire on 10 November 2011 and the non-parole period on 10 May 2010. The overall effective sentence which the applicant is serving is thus a term of 9 years imprisonment with a non-parole period of 7½ years. 5 It is convenient to refer first to the offences in respect of which the applicant was sentenced by Judge Woods. The robbery offence occurred, as I have said, on 13 February 2001. The facts were not in dispute and may be shortly stated. The victim was walking home alone at 2 am in an inner western suburb of Sydney. He heard footsteps behind him and turned to see the applicant standing there. The applicant, whom the victim had never seen before, accused the victim of abusing his (the applicant's) friend the day before. The victim told the applicant that he had the wrong person. The applicant then grabbed the victim by the shoulders and forced him to the ground. When the victim got up, the applicant pulled his shirt over his head and also removed his backpack. It contained clothes which then spilt to the ground. As the victim was picking up his clothes, he was hit on the lip by the applicant. The victim feared that he would be hit again and he and the applicant then got involved in a struggle. During the course of the struggle, the applicant reached around to the victim's rear pocket. The victim indicated that he only had $10, which the applicant then took. The applicant then demanded the victim's wallet in order that he could ascertain the victim's address. He told the victim to accompany him to his friend's house to find out if he (the victim) was indeed the person who had verbally abused him. The applicant and the victim then began walking to Parramatta Road where the victim hailed a taxi. He asked the driver to call the police. The applicant got another taxi and left the scene. Police arrived and pursued the taxi containing the applicant. The taxi cab was stopped and the applicant was arrested. Located in his trouser pocket was the victim's wallet and its contents. 6 The sentencing judge found that although the victim's financial loss was insubstantial, the applicant's conduct in striking the victim and occasioning him various injuries, albeit of a relatively minor nature, would have caused him considerable fear. His Honour also referred to the fact that the victim would have felt vulnerable walking alone in a public street in the early hours of the morning. His Honour also concluded, quite correctly, that the fact that the applicant was on conditional liberty at the time of the offence was a matter of aggravation. The sentencing judge allowed a discount of 25% to the applicant on account of his plea of guilty. 7 So far as the armed robbery offence is concerned, the sentencing judge who had presided over the applicant's trial, found the following facts to have been established by the evidence. His Honour's narrative of the incident is, with minor alterations, set out below: On the relevant date, 4 June, a man called Lawrence was working in Raymond Terrace and living in a caravan park nearby, where a friend of his was also living. Lawrence was at one of the local hotels and decided to leave, either to go home, or to go into Newcastle. He went to wait for a taxi. The offender approached him on the street as he was waiting for a taxi. The jury obviously accepted, and I believe it to be clearly proven to the necessary standard, that the offender at that stage had the purpose of somehow engineering it so that he could get money from Lawrence. There was some discussion and Lawrence … agreed to go with him into Newcastle. Lawrence said he was going to go to one of the brothels in Newcastle and the offender could come along with him. That in fact occurred. They went to the brothel and Lawrence went with one at (sic) the women at the brothel. The offender caused some trouble while he was there in one way or another, apparently trying to get hold of the wallet that Lawrence had left in his trousers while he was [otherwise engaged]. In any event, the offender was not successful in that, and later they got back into a taxi and went back to Raymond Terrace. … From the taxi [Lawrence] rang 000 and tried to alert police or somebody that he was in the taxi with somebody who was behaving in a very eccentric and difficult fashion. One of the key witnesses in the trial was the taxi driver, who essentially confirmed most of what Lawrence said. In any event, as they got back to Raymond Terrace, the offender got out from the cab not far from the caravan park where Lawrence was living, which is itself not far from the town of Raymond Terrace. Lawrence prevailed upon the taxi driver to drive with him up around the town and then back into the area of the caravan park where, worried what ultimately happened might happen, he had a look around to see that there was nobody there lurking in the dark. In any event, the man Lawrence got out in the caravan park. There is no doubt that the offender, having left the taxi, then circled back, went to the caravan park and found where the man Lawrence was. As Lawrence was outside the caravan of a fellow called Mr Field, who was, his friend, the offender held an object against Lawrence's throat and surprised him. The object was probably a Stanley knife or something like it. The prisoner "held up" Lawrence. He unclipped his watch and tried to take his wallet. I find (and the jury clearly accepted) that Lawrence was under the apprehension that he was about to have his throat cut if he did not comply. …[A]s it turns out, the man Field opened the door of the caravan and surprised the offender just as these events were occurring, so the offender absconded. He was subsequently seen by the man Lawrence some days later and police arrested him and charged him. 8 The sentencing judge found that there was a degree of planning involved in this offence and that, unlike the previous matter, the applicant was not entitled to any discount for having entered a plea of guilty. Moreover, it was again a matter of aggravation that the applicant was on conditional bail at the time of the offence. 9 The applicant grew up in Gambia in West Africa and came to Australia in 1988 following his marriage to an Australian woman. That relationship broke down a number of years ago. A subsequent relationship ended when he went into custody. The applicant has a history of gambling. He has also regularly abused illegal drugs and alcohol. Furthermore he has had considerable difficulty in adjusting to life in Australia. It was against that background that his Honour made a finding of "special circumstances". Such a finding was appropriate, his Honour concluded, because of "the cultural displacement of the offender and the likelihood that he will suffer more severely in custody from the circumstances in which he finds himself than other prisoners will". 10 So far as the indecent assault offence is concerned, it is convenient to refer to the remarks on sentence of Judge Charteris who found the following facts for the purpose of sentencing the applicant: On Sunday 3 November the victim and the offender were travelling on a coach from Newcastle to Taree. During the journey the victim formed the view that the accused had stolen some cigarettes, a mobile phone and a walkman from her possession. She reported that to the driver of the coach who on arrival in Taree drove to the police station where the accused/offender and the victim entered the police station. The coach then left. There was apparently some misunderstanding at the police station in that the offender signed his bail reporting card but was not interviewed by police concerning the complaint of theft that the victim had lodged. The bail reporting condition related to two matters upon which this accused was on bail in respect of robbery and robbery being armed with an offensive weapon. As there was no restraint of him or interview of him in respect of the alleged theft the offender left the police station but was pursued by the complainant and an argument developed outside the police station. The offender ran from the area but was followed by the complainant. He entered into a vacant house which was undergoing renovation and the victim followed him therein. When she arrived inside the room the offender attempted to remove her jeans and forced her to the floor of the house and a struggle ensued. In the course of that struggle he said to her "I want to fuck you". She attempted to talk him out of having intercourse with her but he removed her jeans and underwear, removed his own jeans and lay on top of the victim. Although she could feel his erect penis he did not penetrate her. She continued to plead with him. He apologised and got off the complainant and told her to get dressed. There is no evidence that he ejaculated during the course of the event and it appears that something caused him to desist from his behaviour. The complainant dressed and left the house having told the offender that she would not report the matter but she ran directly to the police station. The offender attended the Taree Police Station eight days later to report for his bail. He was arrested at that time. He refused to be interviewed. 11 His Honour found, in the circumstances to which I have referred, that the applicant had pleaded guilty at the first possible opportunity and that his plea had spared the victim from the ordeal of having to give evidence. The sentencing judge was unable however to find any evidence of contrition, particularly as the applicant had provided a totally different and much less serious version of the incident to Dr Nielssen, who had been retained to prepare a report about him. Dr Nielssen indicated that the applicant would benefit from having access, whilst in custody, to a sex offenders treatment program. The sentencing judge found that the applicant would benefit from a longer period of supervision on parole than "the ordinary minimum period" would provide, in order that he could receive ongoing counselling in respect of his unresolved sexual problems. It was upon that basis that his Honour also made a finding of "special circumstances". This offence was aggravated by the fact that the applicant was once again on bail at the time of the commission of the offence. 12 The applicant has a not insignificant criminal record. In 1993 he was fined in the Local Court for supplying heroin. In 1994 he was sentenced to 9 months imprisonment for offences of escape lawful custody, hinder police and possess prohibited drug. In the same year he was sentenced to a term of imprisonment for 4 years 8 months with a non-parole period of 3½ years for an aggravated sexual assault. Further offences of indecent assault and robbery attracted concurrent fixed terms of imprisonment. In 1999 he was sentenced to 12 months imprisonment with a non-parole period of 9 months for offences of break enter and steal and other less serious offences. In 2001 an offence of enter enclosed lands attracted a fine. In 2002 he was imprisoned for 4 months for stealing property in a dwelling house and goods in custody. 13 In respect of the sentences imposed by Judge Woods, the applicant contended that his Honour had erred "in failing to make allowance for the totality of the sentences imposed by partially accumulating them". The relevant principles to be applied where an offender stands for sentence in respect of more than one offence are well established. See Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen [2004] HCA 15. A broad discretion is conferred upon sentencing judges to direct that a sentence of imprisonment be served either wholly or partly consecutively with another term of imprisonment. See also s 55(2) of the Crimes (Sentencing Procedure) Act 1999. No complaint is made about the length of the individual sentences that were imposed. Nor is it submitted that the sentencing judge failed to have regard to the requirements enunciated in Pearce. Moreover it was not suggested that it was not appropriate, given that these were two entirely separate offences committed well over a year apart, to impose cumulative sentences. The submission, in essence, is that in the ultimate result the sentencing judge has imposed sentences which are manifestly excessive. In support of that proposition, it is submitted that the sentencing judge has failed to give proper effect to the principle of totality. 14 I am not persuaded that the sentencing judge has fallen into error of the kind identified. Each offence was a serious instance of criminality. The second offence in particular required the imposition of a salutary penalty. Nor in respect of it, did the applicant have the benefit of any discount for a plea of guilty. In relation to each offence the applicant was, as I have said, on bail at the time. Furthermore, the applicant had a criminal record which suggested that he had learnt nothing from his previous encounters with the law. Moreover his record included a prior conviction for robbery. Accordingly, this ground of appeal should be rejected. 15 The next complaint is that his Honour, having found "special circumstances" and having imposed individual sentences which reflected that finding, then structured those sentences in such a way as to deny the applicant the benefit of that finding since the ultimate overall effect of the sentences imposed was to produce a non-parole period which was 75% of the head sentence. His Honour was aware of that outcome because he remarked that "if it should appear that no apparent benefit accrues to the prisoner from the findings I have made of 'special circumstances', that is an artefact of the sentences imposed for repeat offences". If his Honour was there suggesting that he was in some way constrained to arrive at that outcome notwithstanding his finding of "special circumstances", then I would find that his Honour had fallen into error. However I express no concluded view about the matter as I am unable to determine if that is what his Honour was actually intending to convey by those remarks. 16 The applicant contends that he is left with a legitimate sense of grievance in that he has been deprived of the benefit of a finding to which the sentencing judge said he was entitled. In short, it is submitted that his Honour erred in not giving effect to his finding of "special circumstances". It is convenient to deal with this submission in conjunction with a similar submission which is made in respect of the sentence imposed by Judge Charteris. 17 Finally, the applicant contended that he should have received the benefit of a period of pre-sentence custody. The applicant was arrested and taken into custody on 11 November 2002 in respect of those matters which ultimately culminated in his conviction for indecent assault. He has been in continuous custody since that date. As is apparent, Judge Woods ordered that the sentence for the robbery offence should commence on that date. There was considerable debate before his Honour concerning the appropriate commencement date for that offence given that the applicant had had his bail revoked in respect of the two robbery matters when he was arrested in respect of what I shall refer to, for convenience, as the indecent assault matter. The debate arose because, as at the time of the proceedings before Judge Woods, the indecent assault matter remained unresolved. Given that that matter has now been finalised, it is unnecessary to revisit that debate. 18 Nonetheless it is common ground that the applicant had also spent two discrete periods of time in custody (totalling 43 days) prior to 11 November 2002. Indeed the Crown specifically brought that matter to the sentencing judge's attention. His Honour's failure to refer to that aspect of the case is undoubtedly due to the fact that the focus of the debate was solely upon whether 11 November 2002 or some later date was the appropriate commencement date for those offences. In any event, a sentencing court is required to take into account any pre-sentence custody which is referable to the relevant offence or offences in question. See s 24(1)(a) Crimes (Sentencing Procedure) Act 1999 and R v McHugh (1985) 1 NSWLR 588. In the circumstances, and particularly given the sentencing judge's failure to give reasons for not taking that period into account, I would uphold this ground of appeal. 19 The applicant also relies upon a number of grounds in support of his application for leave to appeal against the severity of the sentence imposed upon him by Judge Charteris. The applicant submits that the sentencing judge erred in his assessment of the objective criminality of this crime particularly as his Honour was disposed to find that:

(c) the applicant apologised to the victim and permitted her to get dressed and to leave the scene of the incident. 20 Moreover, it was submitted that as the applicant had pleaded guilty at the first opportunity, the sentencing judge must have erred in imposing a sentence of 3 years imprisonment against a maximum penalty of 5 years. Counsel for the applicant also called in aid Judicial Commission statistics concerning the range of penalties which have been imposed in other cases of indecent assault. 21 Allied to that contention was a submission that his Honour had found that there were aggravating features of the offence which were not open on the evidence. In that context it was submitted that there was no basis for his Honour to have concluded that "the offence involved threatened use or inferred use of violence" and that "there was injury or emotional harm likely to have been caused to the victim". 22 It is convenient to deal with that submission first. Whilst it is true that the sentencing judge did not have the benefit of a victim impact statement, it was, in my view, nonetheless well open to the sentencing judge to infer from all the circumstances that the applicant's conduct carried with it the threatened use of violence. The facts disclose that there was a struggle during the course of which the applicant removed the victim's jeans and underwear against her will. Having said to her that "I want to fuck you", he then removed his own jeans and lay on top of her. It takes no imagination to conclude that the victim would have been terrified by the applicant's conduct. Moreover it is difficult to avoid the conclusion that the threat of violence on the part of the applicant was anything other than ever present throughout the duration of the incident. 23 Similarly it was well open to the trial judge, in my view, to conclude that the victim was likely to have suffered emotional harm as a result of this incident, even in the absence of explicit evidence upon the issue. Indeed counsel for the applicant at the sentencing hearing conceded that "the inference can be drawn that there may be some psychological injury" to the victim. One of the aggravating features which is identified in s 21A(2)(g) is the fact that "the injury, emotional harm, loss or damage caused by the offence was substantial". It is submitted that his Honour purported to rely upon that provision as a matter of aggravation. This, it was submitted, was an error because even if some emotional harm had been occasioned to the victim, it was not open upon the evidence to conclude that it was substantial. So much may be accepted. However his Honour did not say at any stage that the harm likely to have been caused was in fact substantial. His Honour was entitled nevertheless to arrive at the conclusion which he reached without having to determine that the harm was substantial. His Honour was quite entitled to have regard, in assessing the objective gravity of the offence, to the likely impact of the offence upon the victim. Indeed one of the very purposes of sentencing is to recognise the harm done to the victim and to the community. See s 3A(g) Crimes (Sentencing Procedure) Act 1999. Furthermore s 21A(1)(c) indicates that the court is to take into account "any other objective or subjective factor that affects the relative seriousness of the offence". I am not persuaded in the circumstances that his Honour was purporting to rely upon s 21A(2)(g), as opposed to the more general provisions to which I have just referred. I would not, in any event, discern in relation to this issue, any error of the kind that would attract the intervention of this Court. 24 On any view of the matter, this was a serious example of an offence of indecent assault and it warranted the imposition of an appropriate penalty. Moreover, the offence was committed whilst the applicant was on bail for other serious offences and against the background of prior sexual offences. In any event the way in which his Honour structured the head sentence for this offence had the effect of extending his overall head sentence by only twelve months although the non-parole period was extended by 18 months. In those circumstances I would reject the ground of appeal which asserts that the head sentence is manifestly excessive. 25 It is next submitted that the sentencing judge erred in not taking into account the fact that the offence could have been dealt with in the Local Court. In support of this submission the applicant relied upon a line of authority which includes R v Griggs (1999) 109 A Crim R 484; R v Crombie [1999] NSWCCA 297 and R v Doan (2000) 50 NSWLR 115. 26 In R v Crombie, Wood CJ at CL (with whom Simpson J agreed) said: This Court has acknowledged that the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge, see Dalton-Morgan , Court of Criminal Appeal 14 December 1989, Jason Clyde Smith , Court of Criminal Appeal 11 September 1991, and Shepherd (1991) New South Wales Court of Criminal Appeal 162. None of those decisions go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Moreover, where it appears that in the circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal. 27 In Doan (supra) this Court held that when a person is being dealt with in a higher court for an offence that could have been dealt with in the Local Court with a consequent lower maximum sentence, that is a matter that may, rather than should, be taken into account in mitigation. It is not a universal factor for reduction of sentence. 28 A failure by a sentencing judge to mention that a matter could have been dealt with in the Local Court cannot of itself constitute error. In R v Sivyer [2002] NSWCCA 410, Wood CJ at CL, in a passage which is particularly apposite to the present case, said; It was submitted that, by failing to advert to this fact, or to the possibility that the matter could have been dealt with in the Local Court under S 32 of the Mental Health (Criminal Procedure) Act , his Honour must have overlooked this consideration. However, as I pointed out in Regina v Crombie [1999] NSWCCA 297, there is no absolute principle of law that a sentencing judge must proceed upon the basis that the maximum sentence available in such a situation (here, imprisonment for three years) should be that which could have been imposed in the Local Court. The facts in Crombie are markedly different from those in the present case, where the applicant had multiple convictions for similar offences; had served several terms of imprisonment and has re-offended while on parole. The simple fact is that the applicant chose to plead not guilty in the Local Court, and the DPP had every right to elect to proceed upon indictment in view of the prior record. 29 In my view, there is no substance in this ground of appeal and it ought to be rejected given all the circumstances of the case and particularly in view of the applicant's antecedent criminal behaviour. I am fortified in that view by the fact that counsel who appeared on the applicant's behalf during the sentencing proceedings did not see fit to make a submission of the kind which is now advanced. 30 Finally it is contended that the sentencing judge failed to take into account in structuring this sentence, the principle of totality. It was not contended that a measure of accumulation was not required. The complaint is that notwithstanding the sentencing judge's finding of "special circumstances", the applicant has nonetheless received in the final analysis a non-parole period of 7½ years against a head sentence of 9 years. That is, the overall non-parole period represents 83.3% of the total sentence. 31 Although his Honour did not expressly refer to the principle of totality in calculating the total effective sentence which was ultimately imposed, I am not disposed to conclude that his Honour overlooked the relevant principles which are to be applied. Nevertheless the fact remains that the applicant has received an overall non-parole period which exceeds by some margin the statutory proportion of 75% provided for in s 44 of the Crimes (Sentencing Procedure) Act, notwithstanding the fact that two different sentencing judges have each made a finding of "special circumstances" in his favour. 32 There is a well established principle that the accumulation of sentences is itself a basis upon which a finding of "special circumstances" may be made. See R v Simpson (1992) 61 A Crim R 58; R v Close (1993) 31 NSWLR 743; R v Clissold [2002] NSWCCA 356. In Close Hunt CJ at CL said the principle of "totality is not limited to connected or roughly contemporaneous offences…. In such circumstances, all of the sentences which are accumulated should usually be adjusted downwards to produce an acceptable result" (At 748). 33 I am persuaded that error has been established and that the court must intervene to remedy what is an anomalous outcome. There are plenty of examples of instances, of which Close and Simpson are but two in which this court has intervened in circumstances which parallel the present case. See R v Bolamatu [2002] NSWCCA 454; R v LWP [2003] NSWCCA 215; R v Keen [2004] NSWCCA 86. It is appropriate to do so in this case as well. 34 Accordingly, although for the reasons which I have earlier expressed there is no warrant to interfere with the length of the overall head sentence, there will need to be some adjustment to the overall non-parole period. In my view that can best be achieved by reducing the non-parole period in relation to each of the sentences imposed for the offences of armed robbery and indecent assault respectively. Nevertheless it is important to ensure that the purposes for which an appropriate non-parole period is fixed are reflected in the ultimate result. See R v Simpson (2001) 53 NSWLR 704. 35 I propose the following orders:

R v Jammeh

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