R v Schultz [2002] NSWCCA 462 | Case summary

Friday 15 November 2002 Regina v Paul Patrick Schultz Judgment 1 WOOD CJ at CL: The applicant seeks leave to appeal against a sentence imposed upon him by his Honour Judge Coorey in the District Court on 6 September 2001, following his plea of guilty to an offence of detaining a person with intent to hold him for advantage (s 90A Crimes Act 1900). The maximum available sentence for such an offence is imprisonment for 14 years. An offence of aggravated robbery, being one committed in company, was taken into account on a Form 1. 2 The applicant was sentenced upon the basis of a six page statement of facts which was admitted into evidence without objection. In brief summary, that document discloses that the offence to which the applicant and his co-offenders pleaded guilty, and the matters respectively taken into account on a Form 1, had their genesis in a somewhat elaborate plan, which was first concocted in October 1999 by the co-offender, Nasrallah, to fraudulently obtain bank loans by the creation of documents using false identities. The victim, Sarfraz Dosani, was approached by Ranjodh Schultz, the wife of the present applicant, in that month and informed of the plan. He expressed no interest in it but a friend of his, Anwar, indicated that he would be interested in becoming involved. 3 Subsequently Anwar secured the co-operation of an Indian couple and an Asian male, and provided photographs of those people and of himself to Ranjodh Schultz. A little later Dosani, at Anwar's request, spoke to Mrs Schultz who informed him that it was her boss, Nasrallah, referred to at that stage as "Nick", who was behind the scheme, and that Nick wanted to see him. 4 The following day Dosani and Anwar went to the office of Seven Star Security, a business operated by Nasrallah, where they met him and a male named Faraz. They returned to Nasrallah's office the next day, on which occasion he handed over a number of false citizenship certificates, drivers' licences and other documents. He asked Dosani to take the people described in the documents to a branch of the St George Bank and to open accounts with a view to subsequently making false loan applications. 5 Although Dosani asked Anwar to get rid of the documents, he handed them to the Indian couple who took them to the Bank. Staff there became suspicious and the documents were confiscated. Anwar, at this stage, elected to leave Australia and returned to India. 6 The facts which I have recited so far have a particular relevance to Nasrallah concerning the matters taken into account on a Form 1. There was no evidence before the court to establish that the present applicant was a party to that fraudulent scheme, although it does appear that his wife was, to some extent, involved. 7 Following the bank intervention, Dosani began to receive phone calls from Mrs Schultz asking him to contact Nasrallah. He resisted, but later was lured to the Schultz residence on the pretext of there meeting a girl. He arrived early on the morning of 26 April 2000. While speaking to the female, who he had expected to meet, and who happened to be Jennifer Hogan, an employee of Nasrallah, he suddenly felt a hand come around his neck from behind and he saw a pistol pointed at his head. The pistol was held by Nasrallah. He was pushed to his knees with the assistance of the applicant and his wrists were handcuffed behind his back. 8 Dosani was then driven by Nasrallah to the office of Seven Star Security. The applicant and his wife followed in Dosani's car. 9 Dosani was taken to a back office in those premises and seated in a revolving chair. He remained handcuffed. Nasrallah informed him that he owed him $16,000 for the false identity documents and said that if he did not pay up, then "I will just shoot you or I'll take you to the farm and I have dogs there and they will eat you". 10 At Nasrallah's instruction, the applicant took Dosani's wallet from him. Nasrallah demanded his PIN number for a flexi card account. It was provided and the applicant took the card to an ATM, returning a little while later. After some further discussion about the balance in the account, the applicant again left the premises, with the flexicard. 11 There was evidence that, on this day, two withdrawals were made from the account of Dosani in amounts of $200 and $800. It appears to be common ground that those withdrawals were made by the applicant using the flexi card. Another withdrawal was made on the following day of $300. 12 Dosani was left alone for periods of time, handcuffed to a chair. Nasrallah at one stage directed the applicant to drive to Dosani's home and to bring back all of his property. Nasrallah returned some hours later at which time he had with him Dosani's passport, which had been taken either by him or by the applicant from Dosani's home. He asked the victim how he would get the money, threatening to cut him to pieces if he did not comply. 13 Later Nasrallah, in the company of the applicant, asked Dosani to contact some friends and arrange for them to provide the monies required. He was able to contact two friends who were prepared to give him $3,000. He promised that he would come up with the rest of the money by midday on the following day. He was then required to sign an IOU for $20,000. Before being released he was photographed, and photocopies were made of his bank cards and licence. The applicant then drove him home. 14 On 27 January Dosani reported the matter to police who, on 2 February, charged each of Nasrallah, Hogan, the applicant and his wife. In the course of searching the premises of Seven Star Security, a black replica pistol was found, along with five firearms which were lawfully in Nasrallah's possession in connection with his licensed security business. A number of documents, including false drivers' licences, citizenship certificates, and other documents relating to five individual persons were found. 15 Other enquiries were made which confirmed that two friends of Dosani had, in fact, received telephone calls from him on 26 January, in the course of which they had been asked to provide some money. 16 Each of the applicant and Nasrallah were sentenced in relation to the s 90A offence, to imprisonment for five years with a non parole period of two and a half years. The reduction of the non parole periods was based upon his Honour's finding, which was not supported by any reasons, as to the existence of special circumstances. It was, on any view, a very favourable reduction of the non parole period. 17 Mrs Schultz was sentenced to imprisonment for two years, which sentence was suspended on condition that she enter into a good behaviour bond. Miss Hogan who, alone of the offenders, had cooperated with the police insofar as she had participated in an ERISP, had earlier received a good behaviour bond and had left Australia for her birthplace. 18 The Form 1 offence taken into account in relation to the applicant was an offence of aggravated robbery relating to the taking and use of the flexi card. This offence was similarly taken into account on a Form 1 for Nasrallah, along with 11 offences of having in custody respectively the false identity documents previously mentioned which related to five separate individuals. 19 The offence which was committed by each offender contrary to s 90A was an extremely serious offence. Additionally, the offence of aggravated robbery, as well as the Form 1 offences taken into account in relation to Nasrallah alone were serious offences. They should, in each case, have led to a significant increase in the overall sentence. I am of the clear impression that the sentences overall in relation to each applicant were unduly lenient. 20 However, that is not to the point since this appeal largely turns upon the question of parity. The applicant had a prior record of dishonesty involving offences of break, enter and steal, break and enter with intent, stealing, malicious damage and supply and possess Indian hemp. That record began in 1987 and concluded in 1990, by which time the applicant was aged approximately 19 years. It was one where the various offences involved had been dealt with by way of fine and/or supervised recognisance. Nasrallah had two entries only for serious motoring offences. 21 As I have indicated, the offence in respect of which the applicant was sentenced was an extremely serious one. Even making allowance for the early plea, his expressions of remorse, the favourable character references provided, the fact that this would be his first time in custody and the fact that he was to receive no financial advantage, it was, on any view, very lenient. 22 The applicant, in fact, lent himself to a situation in which the victim was detained, handcuffed, moved from one location to another, threatened, both verbally and with a gun, and robbed, and he became subject to what can only be described as having been an extremely frightening situation. The applicant allowed his home to be used and he was directly involved in restraining Dosani, and in driving him to various locations. The offence, moreover, was one involving a group of persons acting in concert, it was premeditated, its object was to extort money and it extended for some hours. 23 So far as it might be submitted therefore that the head sentence was manifestly excessive, when considered against the maximum available sentence, and the need for a strong element of general and personal deterrence, any such proposition must be dismissed out of hand. 24 Counsel for the applicant accepted as much, concentrating instead upon the question of parity. In that regard it was submitted that, having regard to the finding of his Honour that Nasrallah played the senior role, and also having regard to the additional matters taken into account in his case on a Form 1, the applicant was left with a justifiable sense of grievance, as that expression was explained in Lowe v the Queen (1985) 154 CLR 606 at 618, and in Postiglione v the Queen (1997) 189 CLR 295, when he found himself receiving the same sentence as that offender. 25 No point was taken in relation to the sentences passed upon Miss Hogan or upon the applicant's wife, it presumably being accepted that their criminality was significantly less. Again, one might take the view reasonably that they were unduly favourably dealt with. However, again that is not to the point since this appeal turns essentially upon parity between Nasrallah and the applicant. 26 His Honour did not overlook the question of parity insofar as he noted that it was "hard to distinguish between the two persons when I take into account the fact that one does have a criminal record and the other does not." In coming to that conclusion, it has to be noted that his Honour did not accept the concession which had been made by the Crown Prosecutor, in the course of the sentencing proceedings on 6 September 2001, that there had to be "a distinction" between Nasrallah and the applicant by reason of the fact that it was Nasrallah who had been "the instigator of the offence", and the person who had "instructed his co-offenders". 27 That submission was not accepted by Mr Stanton of counsel for Nasrallah, who pressed the argument for not distinguishing between them, which ultimately found favour with his Honour. 28 In advancing the parity submission it was put that the applicant's record was old, that it related to a period when he was much younger, that it was for quite unrelated and relatively minor offences and that Nasrallah had 11 offences taken into account, on the Form 1, in addition to the offence of robbery, which had been the only additional offence taken into account in relation to the applicant. 29 It was also suggested that his Honour may have fallen into error when assessing the objective criminality of the applicant in not referring to an assertion made by him, which had been picked up in the presentence report, to the effect that "he had not previously known the victim" and that he had been "taken by surprise by some of the conduct of Nasrallah, in particular by his use of a gun and handcuffs, and that he had continued to participate in the joint enterprise out of fear that, otherwise, the situation may have worsened". 30 The applicant did not give any evidence to support this assertion, and the observations made by this Court in R v Quatami [2001] NSWCCA 353 and R v Palu [2002] NSWCCA 381 are pertinent. There it was pointed out that self serving or unsubstantiated statements concerning facts giving rise to the offence, which are offered in such reports, should be ignored or given limited weight if they are not the subject of evidence which can be tested, or otherwise accepted by the Crown. 31 This is not a case where the statements were accepted by the Crown, since issue was directly taken with them in the course of the submissions from the Crown Prosecutor on sentence. In that regard, it was pointed out that the applicant's claim not to have known the victim before his detention was not borne out by the agreed facts. Further, it was pointed out that if he had truly feared that the situation would get out of hand, then he had the opportunity, while leaving the premises to access the bank account of the victim, to pursue alternatives which could have brought the matter to an end. 32 I am not persuaded in these circumstances that anything can be made of the self-serving statement in the presentence report, to reduce the objective criminality of the applicant when considering the question of parity. 33 The application accordingly turns upon the question whether the Crown should be permitted, in the light of the earlier concession, to now press an argument that Nasrallah and the applicant should be treated on an equal basis, and/or whether the difference in their antecedents balances out the greater role played by Nasrallah. 34 The proper role of the Crown in assisting the Court in relation to sentence has been the subject of consideration in decisions such as R v Gamble (1984) 14 A Crim R 179, R v Jermyn (1985) 16 A Crim R 269, R v Everett (1994) 74 A Crim R 241, R v Chad NSWCCA 13 May 1997, Malvaso v the Queen (1989) 168 CLR 227 and R v Milson NSWCCA 10 December 1997. 35 Most of those cases involved a Crown appeal against leniency, where it was sought to depart from some concession made in the course of sentencing proceedings. In that respect the authorities show that the stance taken by the Crown, at first instance, may induce an appellate court not to interfere, or to do so only lightly, even though the sentence was inadequate. 36 In Malvaso, Mason CJ and Brennan and Gaudron JJ, however, made it clear (at 233) that the conduct of the Crown Prosecutor cannot bind the court. As that decision also makes clear, the finding of relevant facts, and the fixing of an appropriate sentence, are matters reserved to the Court. 37 Where an offender has been prejudiced by a concession offered by the Crown, or by silence on its part, in his or her response thereto, then I can see no reason in principle why that may also not become relevant in an appeal against severity, where the Crown seeks to take a different course. For example, it may be that the offender assumes that the sentencing judge will accept the concession made by the Crown at the sentencing stage, and, as a result, elect not to call favourable character evidence, or not to address additional arguments as to why that concession was correct. In those circumstances, the Crown may well face a difficulty in seeking to resile from the stance taken at sentencing when the matter comes before this Court by way of appeal. 38 Whatever may be the correct position in that regard, however, counsel for the applicant accepted that this was not the present case. That clearly must be so since, in the course of the submissions, his Honour flagged his acceptance of the argument as to equivalence in parity, which had been offered by counsel for Nasrallah. It was thereafter open for counsel, who appeared for the applicant, to take issue with such proposition, and to advance an argument similar to that presented by the Crown at sentencing, and similar to that which is now advanced in this appeal. He chose not to do so. 39 I turn, accordingly, to the more pressing and troublesome question; namely whether the balance between the objective criminality of the two offenders was restored, for the reason adopted by his Honour, so as to result in identical sentences. 40 The parity principle of sentencing established in Lowe v the Queen and Postiglione v the Queen requires that there should not be a marked disparity between sentences imposed on co-offenders, of a degree or kind, which gives rise to a justifiable sense of grievance. A sentence which offends that principle should be reduced. That may occur notwithstanding that it is otherwise appropriate or within the permissible range of sentencing options (per Mason J in Lowe at 612 and per Dawson and Gaudron JJ in Postiglione at 301) although, as later noted, the appellate court still retains a discretion not to intervene. 41 In determining whether the parity principle has been observed, as the judgements of Gibbs CJ (at 610) and of Mason J (at 613) in Lowe and of Dawson and Gaudron JJ (at 301), and Kirby J (at 338) in Postiglione show, the different circumstances of co-offenders, including the part which each played in the offence, as well as their subjective circumstances such as age, background, previous criminal history, remorse, rehabilitation prospects and the like, must be considered. 42 That follows from the circumstance, as Dawson and Gaudron JJ confirmed in Postiglione (at 301), that the parity principle is "an aspect of equal justice". Equal justice requires, as their Honours pointed out, that "like should be treated alike, but that, if there are relevant differences, due allowance should be made for them". 43 The principle is enlivened only where the disparity is such as to give rise to a justifiable sense of grievance, or to the appearance of justice not having been done. As Kirby J pointed out in Postiglione (at 337) "So long as the sentencing judge has taken into account the relevant considerations of law and fact, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders". This is associated with the principle of appellate restraint, and with the circumstance that sentencing can never be reduced to a precise mathematical exercise, or to one involving analytical certainty. Room must be left for discretion, and for an individual assessment of the facts by the sentencing judge, who has the benefit of seeing and hearing the evidence first hand. 44 The test for determining the existence of a sense of grievance is objective. That is, a person complaining of disparity must show that a reasonable person looking at the circumstances of the case would regard the offender's grievance as justified: R v Ilbay [2000] NSWCCA 251 per Grove J (at para 6).

R v Schultz

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