R v Youkhana

The application 16 It is the structure of the sentence which gives rise to the principal complaints in the present application. Mr Hamill, for the applicant, argued that his Honour failed to have regard to the effect of accumulation in arriving at both the head sentence and the non-parole period. Certainly, his Honour's only reference to that matter was to record that he had considered making the sentence partly concurrent with the sentence the applicant was then serving but had concluded that there was "no justification for doing this". 17 Mr Hamill argued that the head sentence failed to give effect to the principle of totality, in so far as it normally requires some moderation of a sentence which is to be accumulated upon an existing sentence. That principle, of course, is of long standing. Mr Hamill referred us to the restatement of it in Postiglione v The Queen (1996-7) 189 CLR 295 by McHugh J at 307-9 and Kirby J at 341. McHugh J (at 308) cited with approval the following passage in the judgment of Hunt CJ at CL in R Gordon (1994) 71 ACrim R 459 at 466: When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable… 18 A statement of principle to the same effect is to be found in the judgment of Hunt CJ at CL in R v Close (1993) 65 ACrim R 55 at 59: Whenever sentences are accumulated, careful consideration must always be given to the principle of totality - as to whether the simple addition of two or more sentences which may individually be appropriate has nevertheless produced a total figure which is excessive having regard to the totality of the criminality involved…that principle is not restricted to sentences imposed for offences committed as part of a connected and roughly contemporaneous series of offences… 19 In my view, Mr Hamill's submission is sound. Viewed against the guideline in Henry (supra), to be found in the judgment of Spigelman CJ at [162] - [165], the sentence in the present case is severe but, absent the accumulation, one which could not be said to be excessive in the light of the particularly serious circumstances of the offence, the applicant's maturity and the fact that he was subject to conditional liberty at the time. However, the effect of the accumulation of that sentence upon the existing sentence is an aggregate term of seven years and seven months. Given his plea of guilty and the other favourable subjective circumstances, I consider that to be more than is called for by the totality of the criminality disclosed by the two offences. 20 As I have said, Mr Hamill also submitted that his Honour failed to have regard to the accumulation when considering special circumstances. It is well established that the fact that a sentence is to be accumulated upon an existing sentence can amount to a special circumstance warranting a departure from the usual proportion between head sentence and non-parole period: Close (supra), per Hunt CJ at CL at 60. His Honour did not advert to this matter in his remarks, and appears to have confined his decision that there were no special circumstances to a consideration of the applicant's subjective case. However, the practical difficulty with Mr Hamill's argument is that, albeit mistakenly, his Honour did fix a non-parole period which is less than the statutory proportion. 21 That said, as I am satisfied that the head sentence was affected by error, this Court should set aside the sentence and determine the appropriate sentence afresh. I would accumulate that sentence upon the previous sentence but, for that reason and also in the light of the applicant's subjective case, I would find special circumstances. 22 There were three other grounds of the application which, strictly speaking, it is unnecessary to decide. However, while two of them require no more than brief reference, the third should be considered because it raises a matter of some importance and, in any event, could bear on re-sentence. Nothing need be said about the first ground, which asserts that his Honour erred in the way in which he arrived at the discount for the applicant's plea of guilty. The second ground relates to his Honour's rejection of a statement of the applicant recorded in the psychiatrist's report that "he apologised to the staff of the club at the time of the robbery". It is sufficient to say that a statement to police by the club's receptionist, Mr Bruno Battisti, records that the applicant said, "Sorry, mate" before he bound him with duct tape. 23 The third ground arises from his Honour's finding, as an aggravating factor within the meaning of s21A of the Crimes (Sentencing Procedure) Act, that there "clearly was some emotional harm to the three victims". This must be a reference to the factor set out in s21A(2)(g): "the injury, emotional harm, loss or damage caused by the offence was substantial". It is necessary to examine what evidence his Honour had before him of the victims' reaction to the robbery. 24 Before his Honour were statements by the manager, Mr Wong, and the receptionist, Mr Battisti. For reasons which are not apparent, there was not a statement from the cashier. The only reference to an emotional reaction by Mr Battisti was his saying that he "started to feel scared" when Mea handed the gun to the applicant, who pointed it at Mr Wong and threatened to shoot him in the knee cap. In his own statement, Mr Wong said: During the incident, I was panicking and very concerned when I saw the Islander male with the pistol. At many times during the ordeal, the Islander male pointed the pistol directly at me and I was concerned that he might shoot me. I am still shaken and very nervous as a result of the incident. (The "Islander male" was Mea.)