R v Raniga

CATCHWORDS: Criminal law - Crown appeal - Form 1 offences - Nominal punishment

Criminal Appeal Act 1912, s5D LEGISLATION CITED: Crimes Act 1900, s97(1), s95 Crimes (Sentencing Procedure) Act 1999, s9, s10A,

R v Henry (1999) 46 NSWLR 346 R v Murchie (1999) 108 A Crim R 482 CASES CITED : Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 173 A Crim R 180 Azzi v R [2008] NSWCCA 169 R v Tortell & Tsegay [2007] NSWCCA 313 Pearce v The Queen (1998) 194 CLR 610

PARTIES: Regina (Applicant) Tony John Raniga (Respondent)

COUNSEL: PA Leask (Applicant) G Gillett (Respondent)

SOLICITORS: S Kavanagh, Solicitor for Public Prosecutions (Applicant)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Puckeridge QC DCJ

LOWER COURT DATE OF DECISION: 5 December, 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Tony John Raniga

13 February, 2009 Regina v Tony John RANIGA JUDGMENT

1 GROVE J: The Court is in a position to deal with this matter and I ask Justice Blanch to give judgment.

2 BLANCH J: The Crown appeal is pursuant to s5D of the Criminal Appeal Act, 1912 against a sentence imposed on the respondent in the District Court at Sydney on 5 December, 2008. The respondent had entered pleas of guilty to one charge of robbery in company under s97(1) of the Crimes Act, 1900 which carries a maximum penalty of 20 years imprisonment and a second count of aggravated robbery under s95 Crimes Act, 1900 which also carries a maximum penalty of 20 years imprisonment. On the first count (and taking into account two counts of assault occasioning actual bodily harm on a Form 1 committed on the same day) the sentencing judge deferred passing sentence on condition the respondent enter into a bond under s9 of the Crimes (Sentencing Procedure) Act, 1999 for a period of four years. On the second count he was convicted but no punishment was imposed pursuant to s10(A) of the Crimes (Sentencing Procedure) Act, 1999.

3 The offences occurred in the early hours of the morning of 15 December, 2007. The respondent had been out drinking with three other offenders Faafua, Absolum and Wihongi. The other offenders and the respondent were part of a group of about eight males who were seen to be fighting amongst themselves and affected by intoxicating liquor at Hurstville. The first assault on the Form 1 occurred at 3.35 a.m. when Vangel Toitov was walking towards the group of males. The respondent said to him "What the fuck are you looking at?" The victim did not reply and the respondent punched him to the face causing bruising and swelling to his right cheek. He then punched the victim to the lip causing further bruising. The victim then escaped.

4 The second assault on the Form 1 occurred when the victims Phillip Kok and Cheyne McFarlene-Child were outside a store in Forest Road, Hurstville. The respondent said to McFarlene-Child "Take off your beanie". He refused and the respondent punched him to the left side of his face causing pain and redness. The victim ran off.

5 The robbery in company contained in the first count occurred when the respondent said to Phillip Kok at the same location "Take off your glasses." The victim said he could not see without them and the respondent then punched him to the face and head two or three times causing him to fall to the ground. While he was on the ground the respondent continued to punch him. At that stage an unknown co-offender kicked the victim to the head. The respondent took from the victim a Sony Playstation Portable and a mobile phone. He looked through the victim's wallet but did not remove any items but he did ask the victim "What's your PIN?" The victim did not reply.

6 The group of males then left that area and walked up the escalator leading to Hurstville railway station where the offence in count 2 was captured by CCTV. The footage depicts the respondent scuffling with Wihongi and then the victim Luke Dilosa walked past talking on a mobile phone. Without warning the respondent punched the victim to the face and grabbed his shirt causing it to tear. He yelled at the victim "Give me your fucking phone" and hit him again. There was then a scuffle between the victim and the respondent which moved behind a wall. For a period all four men were in the vicinity of the victim and the victim said he was hit again and he thought by more than one person. He took his phone out of his pocket and threw it away from him. The scuffle then moved back in view of the CCTV camera which shows the other three men walking away but the respondent still assaulting the victim.

7 At the hearing before the sentencing judge, Faafua and Wihongi also appeared for sentence but they entered a plea of guilty to affray in full satisfaction of the indictment and they were each released on a bond to be of good behaviour.

8 The respondent entered pleas of guilty on an indictment presented to the Court at the time of sentencing. The submission by the Crown is that the sentence in respect of the first count and the failure to impose any sentence on the second count is manifestly inadequate. It is pointed out that this Court has recognised that the guideline judgment in R v Henry (1999) 46 NSWLR 346 applies to offences of robbery in company: see R v Murchie (1999) 108 A Crim R 482 and R v Lesi [2005] NSWCCA 63. It is also pointed out in respect of the two matters which appear on the Form 1 that this Court said in Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 137 A Crim R 180 that the entire point of the process is to impose a longer sentence than would have been imposed if the primary offence had stood alone and that it is wrong to suggest the additional penalty should be small and said sometimes it will be substantial.

9 The Crown also points out that this Court has accepted that the guideline judgment in R v Henry (supra) applies to offences under s95 which is the second count: see Azzi v R [2008] NSWCCA 169 and R v Tortell and Tsegay [2007] NSWCCA 313.

10 In the guideline judgment in R v Henry supra at page 380 it was said that in a category of cases which contain the following features: "(i) Young offender with no or little criminal history; (ii) Weapons 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"

a full term of imprisonment of between four and five years would generally be appropriate. That decision was arrived at taking into account many years of previous experience in the Courts and it has been the practice of the Courts since then to continue to be guided by that assessment of the criminality in these cases. The guideline judgment went on at page 386 to say that non-custodial sentences: "… should be restricted to the exceptional cases to which the authorities have always referred."

11 The sentencing judge justified the decision not to impose a sentence on the basis that there were exceptional circumstances in this case. The respondent was a young man said by the judge to be aged 19 at the time of sentence. He was in fact 20 at that time but was 19 at the time of the offences. He had no prior criminal history. His parents were born in Fiji but migrated to Australia as teenagers and the respondent and his four brothers were born in Australia. The respondent and his family are active members of the Pentecostal Church and he is a band leader for their congregation. The sentencing judge heard evidence from the respondent's father and the Pastor of his church and he was satisfied the actions of the respondent were out of character. In order to find exceptional circumstances in this case the judge took into account submissions that the respondent was unlikely to re-offend and that he had taken positive steps to overcome his binge drinking. It was also submitted that the fact that he had been drinking "blunted any intent which he might have had".

12 The judge also referred to the opinion of Dr Westmore that he appeared insightful and remorseful and that "…his risk of re-offending is negligible to non-existent if he does not abuse alcohol again." He went on to quote Dr Westmore's opinion that "… in prison I would consider him to be a prisoner at risk, certainly from a psychological perspective. That is because he does not have antisocial personality traits or an antisocial personality disorder, conditions frequently found in the general and longer term prison population. Those people may have an adverse influence on Mr Raniga's psychology."

13 In considering the offender's responsibility for his actions, the question of his intoxication is of some significance. He has always maintained that he was so drunk he cannot remember any of his actions and has portrayed the offences as having occurred after he had drunk 24 Jim Bean mixed cans. On the other hand he was aware enough on the night to make the various demands on his victims which I have reported in the facts and he was walking around the streets of Hurstville.

14 The question for this Court is whether all of these factors are so exceptional as to lead to the result that a non-custodial penalty or any penalty short of full-time imprisonment would be appropriate. In my view they are not. The counts on the indictment are serious offences which carry maximum penalties of 20 years and in respect of the first count the two charges of assault occasioning actual bodily harm must be given proper evaluation. There is a strong community entitlement for sentences for these offences to reflect the principles of general deterrence. It is true in this case there are strong subjective features and full weight should be given to his youth, lack of criminal history, plea of guilty, that he is unlikely to re-offend, that he has good prospects of rehabilitation and that he has shown remorse.

15 A factor which appears to have been significant in the sentencing judge's reasons is the expression of opinion by Dr Westmore of the possible psychological harm in sending the respondent to gaol. That can be said in respect of anyone who is sent to gaol and it is particularly true of people going to gaol for the first time. It is an unfortunate consequence of imprisonment but it is an inevitable result when the inmates of prisons are people who have committed criminal offences. It is not an exceptional feature peculiar to this case.

16 The failure to impose any penalty on the second count is properly conceded by the respondent to be an error. It is difficult to envisage any situation where it would be appropriate not to impose any penalty for an offence which has a maximum penalty of 20 years. When s10A was introduced into the Crimes (Sentencing Procedure) Act, 1999 in 2007 the Second Reading Speech indicates it was to "… overcome situations where inappropriate sentences have been imposed such as fines of 50 cents." It is clear from the Second Reading Speech the purpose was to introduce an option for nominal sentences to be imposed. It cannot be used to overcome the injunction in Pearce v The Queen (1998) 194 CLR 610 at 624 where it was said in the joint judgment of McHugh, Hayne and Callinan JJ: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well, of course, as questions of totality."

17 It is of course necessary to bear in mind the principle of double jeopardy when dealing with a Crown appeal and to recognise that the respondent has already been through the sentencing process and is now required to go through it again. However, in spite of that, I believe the appeal by the Crown should be allowed and the orders in the District Court should be quashed. In that case it will be necessary to re-sentence and in doing that the sentence to be imposed will be significantly less than it might otherwise have been because of the double jeopardy.

18 The orders I propose are: 1. allow the appeal; 2. quash the orders of the District Court deferring sentence on the first count and not imposing a sentence on the second count; 3. on the first count, sentence the respondent to a non-parole period of six months with a balance of term of 18 months to date from today and in doing that I take into account the two matters on the Form 1. That non-parole period will expire on 12 August, 2009; 4. on the second count, impose a non-parole period of three months from 13 August, 2009 and a balance of term of 12 months and order his release to parole on 12 November, 2009 under the terms of supervision specified in the Schedule to the Sentencing Act .

21 GROVE J: The orders of the Court, therefore, will be as proposed by Justice Blanch.

14/04/2009 - Typographical error - Paragraph(s) Cover sheet - Decision

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